Exhibit 10.1
EXECUTION VERSION
HEWITT ASSOCIATES
L.L.C.
THIRD AMENDMENT TO NOTE PURCHASE
AGREEMENT
As of November 21,
2008
To the Holders of Notes
Named on the Signature Pages Hereto
Ladies and Gentlemen:
Each of Hewitt Associates L.L.C.
(hereinafter, together with its successors and assigns, the “
Company ”) and Hewitt Associates, Inc. (hereinafter,
together with its successors and assigns, the “
Guarantor ”) agrees with you as follows:
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1.
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PRELIMINARY
STATEMENTS.
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1.1.
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Note
Issuances, etc.
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Pursuant to that certain Note
Purchase Agreement dated as of March 15, 2000 (as in effect
immediately prior to giving effect to the Amendments (as defined
below) provided for hereby, the “ Existing Note Purchase
Agreement ”, and as amended by this Amendment Agreement
(as defined below) and as may be further amended, restated or
otherwise modified from time to time, the “ Note Purchase
Agreement ”) the Company issued and sold (a) Fifteen
Million Dollars ($15,000,000) in aggregate principal amount of its
7.94% Senior Notes, Series A Tranche 1 due March 30, 2007 (the
“ Series A, Tranche 1 Notes ”), (b) Thirty
Five Million Dollars ($35,000,000) in aggregate principal amount of
its 8.08% Senior Notes, Series A Tranche 2 due March 30, 2012
(the “ Series A, Tranche 2 Notes ”),
(c) Ten Million Dollars ($10,000,000) in aggregate principal
amount of its 8.11% Senior Notes, Series B due June 30, 2010
(the “ Series B Notes ”), (d) Fifteen
Million Dollars ($15,000,000) in aggregate principal amount of its
7.93% Senior Notes, Series C due June 30, 2007 (the “
Series C Notes ”), (e) Ten Million Dollars
($10,000,000) in aggregate principal amount of its 7.65% Senior
Notes, Series D due October 15, 2005 (the “ Series D
Notes ”) and (f) Fifteen Million Dollars
($15,000,000) in aggregate principal amount of its 7.90% Senior
Notes, Series E due October 15, 2010 (the “ Series E
Notes ”). As of the date hereof, the Series A, Tranche 2
Notes, the Series B Notes and the Series E Notes (as amended,
restated or otherwise modified from time to time as of the date
hereof, the “ Notes ”) remain outstanding. The
register for the registration and transfer of the Notes indicates
that the parties named in Annex 1 (the “ Noteholders
”) to this Third Amendment to Note Purchase Agreement (this
“ Amendment Agreement ”) are the holders of the
entire outstanding principal amount of the Notes as of the date
hereof.
Capitalized terms used herein and
not otherwise defined herein have the meanings ascribed to them in
the Existing Note Purchase Agreement, provided that, capitalized
terms used in Exhibit B to this Amendment Agreement and not
otherwise defined therein have the meanings ascribed to them in the
Note Purchase Agreement after giving effect to the Amendments (as
defined below).
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3.
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AMENDMENTS
TO THE EXISTING NOTE PURCHASE AGREEMENT.
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Subject to Section 5 of this
Amendment Agreement, each of the Noteholders, the Company and the
Guarantor hereby agree to each of the amendments to the Existing
Note Purchase Agreement as provided for by this Amendment Agreement
and specified in Exhibit A. Such amendments are referred to herein,
collectively, as the “ Amendments ”.
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4.
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REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND GUARANTOR.
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To induce you to enter into this
Amendment Agreement and to consent to the Amendments, the Company
and Guarantor jointly and severally represent and warrant as
follows:
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4.1.
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Organization, Power and Authority,
etc.
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Each of the Company and the
Guarantor has all requisite corporate or limited liability company
power and authority (as applicable) to enter into and perform its
obligations under this Amendment Agreement (including, with respect
to the Guarantor, its obligations under the Unconditional Guaranty
(as defined in the Amendments)).
The execution and delivery of this
Amendment Agreement by the Company and the Guarantor and compliance
by the Company and the Guarantor with their respective obligations
hereunder and under the Note Purchase Agreement (including, without
limitation, the obligations of the Guarantor under the
Unconditional Guaranty): (a) are within the corporate or
limited liability company powers of the Company and Guarantor (as
applicable); and (b) do not violate or result in any breach
of, constitute a default under, or result in the creation of any
Lien upon any property of the Company or the Guarantor under the
provisions of: (i) its governing organizational documents;
(ii) any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority applicable to the Company, the
Guarantor or any of their respective property; or (iii) any
agreement or instrument to which the Company or the Guarantor is a
party or by which the Company or the Guarantor or any of their
property may be bound or any statute or other rule or regulation of
any Governmental Authority applicable to the Company, Guarantor or
their property.
This Amendment Agreement has been
duly authorized by all necessary action on the part of the Company,
has been executed and delivered by a duly authorized officer of the
Company, and constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by
applicable
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bankruptcy, reorganization, arrangement,
insolvency, moratorium, or other similar laws affecting the
enforceability of creditors’ rights generally and subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
This Amendment Agreement (including,
without limitation, the Unconditional Guaranty) has been duly
authorized by all necessary action on the part of the Guarantor,
has been executed and delivered by a duly authorized officer of the
Guarantor, and constitutes a legal, valid and binding obligation of
the Guarantor, enforceable against the Guarantor in accordance with
its terms, except as such enforceability may be limited by
applicable bankruptcy, reorganization, arrangement, insolvency,
moratorium, or other similar laws affecting the enforceability of
creditors’ rights generally and subject to general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
No event or condition has occurred
and exists that: (a) would constitute a Default or an Event of
Default or (b) could reasonably be expected to have a Material
Adverse Effect (as defined in the Existing Note Purchase
Agreement).
There are no actions, suits,
investigations or proceedings pending or, to the knowledge of the
Company or the Guarantor, threatened against or affecting the
Guarantor or any Subsidiary or any property of the Guarantor 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 (as defined in the Note Purchase Agreement after
giving effect to the Amendments).
This Amendment Agreement and the
documents, certificates or other writings delivered to the
Noteholders by or on behalf of the Company and/or Guarantor in
connection herewith, including the annual financial statements of
the Guarantor and its Subsidiaries for the fiscal year ended
September 30, 2008 (the “ Guarantor Financial
Statements ”), 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. There is no
fact known to the Company or the Guarantor 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 the Noteholders by or on behalf of the
Company and/or the Guarantor specifically for use in connection
with the transactions contemplated by the this Amendment Agreement
(including the Guarantor Financial Statements).
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4.6.
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Additional
Representations and Warranties.
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The Company and the Guarantor
jointly and severally make the representations and warranties that
are set forth in Exhibit B to this Amendment Agreement.
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5.
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EFFECTIVENESS OF AMENDMENTS.
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Upon the satisfaction in full of the
following conditions precedent, the Amendments shall become
effective:
(a) as of the date hereof with
respect to all Amendments other than the Amendments to
Section 10 (and the amendment of any defined term as it is
used therein) (which shall become effective as set forth in
paragraphs (b), (c) and (d) of this
Section 5);
(b) as of October 1, 2008 with
respect to the Amendments to Section 10 (and the amendment or
addition of any defined term as it is used therein) other than the
Amendments which amend and restate Sections 10.3, 10.6 and 10.7
(and the amendment of any defined term as it is used therein)
(which shall become effective as set forth in paragraphs
(c) and (d) of this Section 5);
(c) (i) as of September 30,
2008 with respect to the deletion of Section 10.3
(Consolidated Net Capital) as in effect prior to giving effect to
the Amendments and (ii) as of October 1, 2008 with
respect to the addition of the Section 10.3 (Line of Business)
that is set forth in the Amendments (and the amendment or addition
of any defined term as it is used therein); and
(d) (i) as of September 30,
2008 with respect to the addition of the Sections 10.6 (Interest
Coverage Ratio) and 10.7 (Leverage Ratio) that are set forth in the
Amendments (and the amendment or addition of any defined term as it
is used therein) and (ii) as of October 1, 2008 with
respect to the deletion of Sections 10.6 (Indebtedness of
Restricted Subsidiaries) and 10.7 (Liens) as in effect prior to
giving effect to the Amendments (and the amendment of any defined
term as it is used therein); for the purpose of avoiding having
duplicate Sections numbered 10.6 and 10.7 on September 30,
2008, the Sections 10.6 (Indebtedness of Restricted Subsidiaries)
and 10.7 (Liens) that are being deleted as of October 1, 2008
will be designated as Sections 10.6A and 10.7A, respectively, on
September 30, 2008 before their deletion as of October 1,
2008 in accordance with clause (ii) of this paragraph
(d);
(as to each Amendment, the date that
it becomes effective as provided in this sentence being the “
Effective Date ” with respect to such
Amendment).
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5.1.
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Execution
and Delivery of this Amendment Agreement.
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The Company, the Guarantor and each
of the Noteholders shall have executed and delivered this Amendment
Agreement.
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5.2.
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Representations and Warranties
True.
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The representations and warranties
set forth in Section 4 shall be true and correct on the date
hereof in all respects.
The Company and Guarantor shall have
authorized, by all necessary action, the execution, delivery and
performance of all documents, agreements and certificates delivered
in connection with this Amendment Agreement.
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5.4.
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Opinions,
Secretary’s Certificate, etc.
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Each of the Noteholders shall have
received opinions in form and substance satisfactory to such
Noteholder, dated the date hereof (a) from the General Counsel
of the Guarantor covering such matters incident to the transactions
contemplated hereby as such Noteholder or its counsel may
reasonably request and (b) from Debevoise & Plimpton
LLP, counsel for the Guarantor, in form and substance satisfactory
to such Noteholder and its counsel (and the Guarantor hereby
instructs its counsel to deliver such opinion to the Noteholders).
Each of the Noteholders shall have also received, on or before the
date hereof, a certificate of the Guarantor’s Secretary or
Assistant Secretary dated the date hereof, certifying as to the
resolutions attached thereto and other corporate proceedings
relating to the authorization, execution and delivery of this
Amendment Agreement.
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5.5.
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Special
Counsel Fees.
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The Company shall have paid the
reasonable fees and disbursements of Noteholders’ special
counsel in accordance with Section 6 below.
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5.6.
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Proceedings
Satisfactory.
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All proceedings taken in connection
with this Amendment Agreement and all documents and papers relating
thereto shall be satisfactory to the Noteholders signatory hereto
and their special counsel, and such Noteholders and their special
counsel shall have received copies of such documents and papers as
they or their special counsel may reasonably request in connection
herewith.
Whether or not the Amendments become
effective, the Company will promptly (and in any event within
thirty (30) days of receiving any statement or invoice
therefor) pay all reasonable fees, expenses and costs of your
special counsel, Bingham McCutchen LLP, incurred in connection with
the preparation, negotiation and delivery of this Amendment
Agreement and any other documents related thereto. Nothing in this
Section shall limit the Company’s obligations pursuant to
Section 15.1 of the Existing Note Purchase
Agreement.
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7.1.
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Part of
Existing Note Purchase Agreement; Future References,
etc.
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This Amendment Agreement shall be
construed in connection with and as a part of the Note Purchase
Agreement and, except as expressly amended by this Amendment
Agreement, all terms, conditions and covenants contained in the
Existing Note Purchase Agreement are hereby ratified and shall be
and remain in full force and effect. Any and all notices, requests,
certificates and other instruments executed and delivered after the
execution and delivery of this Amendment Agreement may refer to the
Note Purchase Agreement without making specific reference to this
Amendment Agreement, but nevertheless all such references shall
include this Amendment Agreement unless the context otherwise
requires.
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7.2.
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Counterparts, Facsimiles.
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This Amendment Agreement may be
executed in any number of counterparts, each of which shall be an
original but all of which together shall constitute one instrument.
Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties
hereto. Delivery of an executed signature page by facsimile
transmission shall be effective as delivery of a manually signed
counterpart of this Amendment Agreement.
This Amendment Agreement shall be
binding upon and inure to the benefit of the respective successors
and assigns of the parties hereto.
THIS AMENDMENT AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF ILLINOIS
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT
WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
[Remainder of page
intentionally left blank. Next page is signature
page.]
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If you are in agreement with the
foregoing, please so indicate by signing the acceptance below on
the accompanying counterpart of this Amendment Agreement and
returning it to the Company, whereupon it will become a binding
agreement among you, the Company and the Guarantor.
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HEWITT
ASSOCIATES L.L.C.
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By:
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Name:
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Title:
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HEWITT
ASSOCIATES, INC.
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By:
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Name:
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Title:
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Signature Page to Amendment No. 1 to
Note Purchase Agreement
The foregoing Amendment Agreement is
hereby accepted as of the date first above written. By its
execution below, each of the undersigned represents that it is the
owner of one or more of the Notes and is authorized to enter into
this Amendment Agreement in respect thereof.
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PACIFIC LIFE
INSURANCE COMPANY
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
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By:
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Babson Capital
Management LLC, as Investment Adviser
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By:
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Name:
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Title:
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C.M. LIFE
INSURANCE COMPANY
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By:
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Babson Capital
Management LLC, as Investment Sub-Adviser
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By:
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Name:
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Title:
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PHOENIX LIFE
INSURANCE COMPANY
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By:
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Name:
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Title:
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Signature Page to Third Amendment to
Note Purchase Agreement
Annex 1
Noteholders
Pacific Life Insurance
Company
Massachusetts Mutual Life Insurance
Company
C.M. Life Insurance Company
Phoenix Life Insurance Company
Annex 1-1
EXHIBIT A
AMENDMENTS
(a) Section 7 –
Information . Section 7 of the Existing Note Purchase
Agreement is hereby amended and restated to read as
follows:
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7.1.
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Financial
and Business Information.
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The Guarantor shall deliver to each
holder of Notes that is an Institutional Investor:
(a) Quarterly Statements of
Guarantor and Subsidiaries — within 60 days (or such
shorter period as is 15 days greater than the period applicable to
the filing of the Guarantor’s Quarterly Report on Form 10-Q
(the “ Form 10-Q ”) with the SEC regardless of
whether the Guarantor is subject to the filing requirements
thereof) after the end of each quarterly fiscal period in each
fiscal year of the Guarantor (other than the last quarterly fiscal
period of each such fiscal year), duplicate copies of,
(i) a consolidated balance sheet of
the Guarantor and its Subsidiaries as at the end of such quarter,
and
(ii) consolidated statements of
income, changes in shareholders’ equity (if such statements
of changes in shareholders’ equity are prepared by the
Guarantor in connection with its quarterly financial statements)
and cash flows of the Guarantor and its Subsidiaries, for such
quarter and (in the case of the second and third quarters) for the
portion of the fiscal year ending with such quarter,
setting forth in each case in
comparative form the figures for the corresponding periods in the
previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP applicable to quarterly financial statements
generally, and certified by a Senior Financial Officer of the
Guarantor as fairly presenting, in all material respects, the
financial position of the companies being reported on and their
results of operations and cash flows, subject to changes resulting
from year-end adjustments, provided that delivery within the time
period specified above of copies of the Guarantor’s Form 10-Q
prepared in compliance with the requirements therefor and filed
with the SEC shall be deemed to satisfy the requirements of this
Section 7.1(a), provided, further, that the Company shall be
deemed to have made such delivery of such Form 10-Q if it shall
have timely made such Form 10-Q available on “EDGAR”
and on its home page on the worldwide web (on the Third Amendment
Date located at: http//www.hewittassociates.com) and shall have
given each holder of Notes prior notice of such availability on
EDGAR and on its home page in connection with each delivery (such
availability and notice thereof being referred to as “
Electronic Delivery ”);
(b) Annual Statements of
Guarantor and Subsidiaries — within 90 days (or such
shorter period as is 15 days greater than the period applicable to
the filing of the Guarantor’s Annual Report on Form 10-K (the
“ Form 10-K ”) with the SEC
regardless
Exhibit A-1
of whether the Guarantor is subject
to the filing requirements thereof) after the end of each fiscal
year of the Guarantor, duplicate copies of
(i) a consolidated balance sheet of
the Guarantor and its Subsidiaries as at the end of such
year,
(ii) consolidated statements of
income, changes in shareholders’ equity (if such statements
of changes in shareholders’ equity are prepared by the
Guarantor in connection with its annual financial statements) and
cash flows of the Guarantor and its Subsidiaries for such
year,
(iii) a consolidating balance sheet
of the Guarantor and its Subsidiaries as at the end of such year
(if delivered by the Guarantor or the Company to any other holder
of Indebtedness or equity of the Guarantor or the Company),
and
(iv) consolidating statements of
income, changes in shareholders’ equity and cash flows of the
Guarantor and its Subsidiaries for such year (if delivered by the
Guarantor or the Company to any other holder of Indebtedness or
equity of the Guarantor or the Company),
setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP, and, in the
case of the consolidated statements delivered pursuant to
subsections (i) and (ii) above, accompanied by
(A) an opinion thereon of
independent public accountants of recognized national standing,
which opinion shall state that such financial statements present
fairly, in all material respects, the financial position of the
companies being reported upon and their results of operations and
cash flows and have been prepared in conformity with GAAP, and that
the examination of such accountants in connection with such
financial statements has been made in accordance with generally
accepted auditing standards, and that such audit provides a
reasonable basis for such opinion in the circumstances,
and
(B) a certificate of such
accountants stating that they have reviewed this Agreement and
stating further whether, in making their audit, they have become
aware of any condition or event that then constitutes a Default or
an Event of Default under Section 10.6 or Section 10.7
(each as in effect after giving effect to the Third Amendment),
and, if they are aware that any such condition or event then
exists, specifying the nature and period of the existence thereof
(it being understood that such accountants shall not be liable,
directly or indirectly, for any failure to obtain knowledge of any
Default or Event of Default under such Section 10.6 or
Section 10.7 unless such accountants should have obtained
knowledge thereof in making an audit in accordance with generally
accepted auditing standards or did not make such an audit and such
certificate shall not be required if such accountants do not
provide such certificate pursuant to their internal policy and such
certificate may be qualified to the extent the accounting policy
requires such qualification);
Exhibit A-2
provided that the delivery within the time period
specified above of the Guarantor’s Form 10-K for such fiscal
year (together with the Guarantor’s annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) prepared in accordance with the requirements therefor
and filed with the SEC, together with the accountant’s
certificate described in clause (B) above (the “
Accountants’ Certificate ”), shall be deemed to
satisfy the requirements of this Section 7.1(b), provided,
further, that the Guarantor shall be deemed to have made such
delivery of such Form 10-K if it shall have timely made Electronic
Delivery thereof, in which event the Guarantor shall separately
deliver, concurrently with such Electronic Delivery, the
Accountants’ Certificate;
(c) SEC and Other Reports
— promptly upon their becoming available, one copy of the
following, which are publicly available: (i) each financial
statement, report, notice or proxy statement sent by the Guarantor
or any Subsidiary to its public securities holders generally, and
(ii) each regular or periodic report, each registration
statement (without exhibits except as expressly requested by such
holder), and each prospectus and all amendments thereto filed by
the Guarantor or any Subsidiary with the SEC and of all press
releases and other statements made available generally by the
Guarantor or any Subsidiary to the public concerning developments
that are Material, provided, that the Guarantor or any Subsidiary
shall be deemed to have made such delivery if it shall have made
such statement, report or notice available on “EDGAR”
and on its home page on the worldwide web (on the Third Amendment
Date located at: http//www.hewittassociates.com) and shall have
given each holder of Notes notice of such availability on EDGAR and
on its home page in connection with each delivery;
(d) Notice of Default or Event of
Default — promptly, and in any event within five days
after a Responsible Officer becoming aware of the existence of any
Default or Event of Default or that any Person has given any notice
or taken any action with respect to a claimed default hereunder or
that any Person has given any notice or taken any action with
respect to a claimed default of the type referred to in
Section 11(f), a written notice specifying the nature and
period of existence thereof and what action the Company is taking
or proposes to take with respect thereto;
(e) ERISA Matters —
promptly, and in any event within five days after a Responsible
Officer becoming aware of any of the following, a written notice
setting forth the nature thereof and the action, if any, that the
Guarantor or an ERISA Affiliate proposes to take with respect
thereto:
(i) with respect to any Plan, any
reportable event, as defined in section 4043(c) of ERISA and the
regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date
hereof; or
(ii) the taking by the PBGC of steps
to institute, or the threatening by the PBGC of the institution of,
proceedings under section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan, or the
receipt
Exhibit A-3
by the Guarantor or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan;
or
(iii) any event, transaction or
condition that could result in the incurrence of any liability by
the Guarantor or any ERISA Affiliate pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code relating
to employee benefit plans, or in the imposition of any Lien on any
of the rights, properties or assets of the Guarantor or any ERISA
Affiliate pursuant to Title I or IV of ERISA or such penalty or
excise tax provisions, if such liability or Lien, taken together
with any other such liabilities or Liens then existing, could
reasonably be expected to have a Material Adverse
Effect;
(f) Notices from Governmental
Authority — promptly, and in any event within 30 days of
receipt thereof, copies of any notice to the Guarantor or any
Subsidiary from any Federal or state Governmental Authority
relating to any order, ruling, statute or other law or regulation
that could reasonably be expected to have a Material Adverse
Effect; and
(g) Requested Information
— with reasonable promptness, such other data and information
relating to the business, operations, affairs, financial condition,
assets or properties of the Guarantor or any of its Subsidiaries
(including, but without limitation, actual copies of the
Guarantor’s Form 10-Q and Form 10-K) or relating to the
ability of the Company or the Guarantor to perform its obligations
hereunder and under the Notes as from time to time may be
reasonably requested by any such holder of Notes.
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7.2.
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Officer’s Certificate.
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Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or
Section 7.1(b) shall be accompanied by a certificate of a
Senior Financial Officer of the Guarantor setting forth (which, in
the case of Electronic Delivery of any such financial statements,
shall be by separate concurrent delivery of such certificate to
each holder of Notes):
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(a)
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Covenant
Compliance —
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(i) in the case of the financial
statements for the fiscal year ended September 30, 2008, the
information (including detailed calculations) required in order to
establish whether the Company (and the Guarantor, as applicable)
was in compliance with the requirements of Sections 10.2 through
and including 10.10 (as such Sections were in effect as of
September 30, 2008), during the annual period covered by the
statements then being furnished (including with respect to each
such Section, where applicable, the calculations of the maximum or
minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the calculation
of the amount, ratio or percentage then in existence);
and
Exhibit A-4
(ii) in the case of the financial
statements for all periods ending after September 30, 2008,
the information (including detailed calculations) required in order
to establish whether the Company and the Guarantor were in
compliance with the requirements of Section 10.5,
Section 10.6, Section 10.7, Section 10.9 and
Section 10.10 during the quarterly or annual period covered by
the statements then being furnished (including with respect to each
such Section, where applicable, the calculations of the maximum or
minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the calculation
of the amount, ratio or percentage then in existence);
and
(i) in the case of the financial
statements for the fiscal year ended September 30, 2008, a
statement that such Senior Financial Officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his
or her supervision, a review of the transactions and conditions of
the Guarantor and its Subsidiaries from October 1, 2007 to the
date of the certificate and that such review shall not have
disclosed:
(x) with respect to the period from
October 1, 2007 through and including September 29, 2008,
the existence of any condition or event that constitutes a Default
or an Event of Default (each such term as in effect prior to giving
effect to the Third Amendment),
(y) with respect to the period from
September 30, 2008 through and including the date immediately
preceding the Third Amendment Date, the existence of any condition
or event that constitutes a Default or an Event of Default (each
such term as in effect (A) with respect to the amendments
under the Third Amendment that became effective as of
September 30, 2008, after giving effect to such amendments;
(B) with respect to the amendments under the Third Amendment
that became effective as of October 1, 2008 (I) on
September 30, 2008, prior to giving effect to such amendments
and (II) from October 1, 2008 through and including the date
immediately preceding the Third Amendment Date, after giving effect
to such amendments; and (C) with respect to all the other
amendments under the Third Amendment, prior to giving effect to
such amendments) or
(z) with respect to the period from
the Third Amendment Date to the date of the certificate, the
existence of any condition or event that constitutes a Default or
an Event of Default (each such term as in effect after giving
effect to the Third Amendment),
or, if any such condition or event
existed or exists (including, without limitation, any such event or
condition resulting from the failure of the Guarantor or any
Subsidiary to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Company
and the Guarantor shall have taken or propose to take with respect
thereto;
Exhibit A-5
(ii) in the case of the financial
statements for the fiscal quarter ended December 31, 2008 and
the financial statements for the fiscal year ended
September 30, 2009, a statement that such Senior Financial
Officer has reviewed the relevant terms hereof and has made, or
caused to be made, under his or her supervision, a review of the
transactions and conditions of the Guarantor and its Subsidiaries
from October 1, 2008 to the date of the certificate and that
such review shall not have disclosed:
(x) with respect to the period from
October 1, 2008 through and including the date immediately
preceding the Third Amendment Date, the existence of any condition
or event that constitutes a Default or an Event of Default (each
such term as in effect (A) with respect to the amendments
under the Third Amendment that became effective as of
September 30, 2008 or October 1, 2008, after giving
effect to such amendments and (B) with respect to all the
other amendments under the Third Amendment, prior to giving effect
to such amendments) or
(y) with respect to the period from
the Third Amendment Date to the date of the certificate, the
existence of any condition or event that constitutes a Default or
an Event of Default (each such term as in effect after giving
effect to the Third Amendment),
or, if any such condition or event
existed or exists (including, without limitation, any such event or
condition resulting from the failure of the Guarantor or any
Subsidiary to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Company
and the Guarantor shall have taken or propose to take with respect
thereto; and
(iii) in the case of the financial
statements for all periods ending after December 31, 2008
(other than the financial statements for the fiscal year ended
September 30, 2009), a statement that such Senior Financial
Officer has reviewed the relevant terms hereof and has made, or
caused to be made, under his or her supervision, a review of the
transactions and conditions of the Guarantor and its Subsidiaries
from the beginning of the quarterly or annual period covered by the
statements then being furnished to the date of the certificate and
that such review shall not have disclosed the existence during such
period of any condition or event that constitutes a Default or an
Event of Default (each such term as in effect after giving effect
to the Third Amendment) or, if any such condition or event existed
or exists (including, without limitation, any such event or
condition resulting from the failure of the Guarantor or any
Subsidiary to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Company
and the Guarantor shall have taken or propose to take with respect
thereto.
Exhibit A-6
The Company and the Guarantor shall
permit the representatives of each holder of Notes that is an
Institutional Investor:
(a) No Default — if no
Default or Event of Default then exists, at the expense of such
holder and upon reasonable prior notice to the Guarantor, to visit
the principal executive offices of the Company and the Guarantor,
to discuss the affairs, finances and accounts of the Guarantor and
its Subsidiaries with the Company’s and the Guarantor’s
officers, and (with the consent of the Guarantor, which consent
will not be unreasonably withheld) its independent public
accountants, and (with the consent of the Guarantor, which consent
will not be unreasonably withheld) to visit the other offices and
properties of the Guarantor and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested in
writing; and
(b) Default — if a
Default or Event of Default then exists, at the expense of the
Company to visit and inspect any of the offices or properties of
the Guarantor or any Subsidiary, to examine all their respective
books of account, records, reports and other papers, to make copies
and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and
independent public accountants (and by this provision the Guarantor
authorizes said accountants to discuss the affairs, finances and
accounts of the Guarantor and its Subsidiaries), all at such times
and as often as may be requested.”
(b) Section 8 –
Prepayments . Section 8 of the Existing Note Purchase
Agreement is hereby amended by adding new Sections 8.7 and 8.8 to
read as follows:
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“
8.7.
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Prepayment
Upon Change of Control.
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(a) Notice of Change of Control
or Control Event; Offer to Prepay if Change of Control has
Occurred . The Company will, within five (5) Business Days
after any Responsible Officer has knowledge of the occurrence of
any Change of Control or Control Event, give notice of such Change
of Control or Control Event to each holder of Notes. If a Change of
Control has occurred, such notice shall contain and constitute an
offer to prepay Notes as described in paragraph (b) of this
Section 8.7 and shall be accompanied by the certificate
described in paragraph (e) of this
Section 8.7.
(b) Offer to Prepay; Time for
Payment . The offer to prepay Notes contemplated by paragraph
(a) of this Section 8.7 shall be an offer to prepay, in
accordance with and subject to this Section 8.7, all, but not
less than all, of the Notes held by each holder (in the case of
this Section 8.7 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 ”). The
Proposed Prepayment Date shall not be less than 15 days and not
more than 60 days after the date of such offer (if the Proposed
Prepayment Date shall not be specified in the offer, the Proposed
Prepayment Date shall be the 45th day after the date of such
offer).
Exhibit A-7
(c) Acceptance; Rejection . A
holder of Notes may accept the offer to prepay made pursuant to
this Section 8.7 by causing a notice of such acceptance to be
delivered to the Company at least ten (10) days prior to the
Proposed Prepayment Date. A failure by a holder of Notes to respond
to an offer to prepay made pursuant to this Section 8.7, or to
accept an offer as to all of the Notes held by the holder, within
such time period shall be deemed to constitute a rejection of such
offer by such holder.
(d) Prepayment . Prepayment
of the Notes to be prepaid pursuant to this Section 8.7 shall
be at 100% 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.
(e) Officer’s
Certificate . Each offer to prepay the Notes pursuant to this
Section 8.7 shall be accompanied by a certificate, executed by
a Senior Financial Officer of the Company and dated the date of
such offer, specifying: (i) the Proposed Prepayment Date,
(ii) that such offer is made pursuant to this
Section 8.7, (iii) that the entire principal amount of
each Note is offered to be prepaid without any Make-Whole Amount,
(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 8.7 required to be fulfilled prior
to the giving of such notice have been fulfilled and (vi) in
reasonable detail, the nature and date of the Change of
Control.
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8.8.
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Prepayment
in Connection with an Asset Disposition.
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(a) Notice and Offer . In the
event any Debt Prepayment Application is to be used to make an
offer (a “ Transfer Prepayment Offer ”) to
prepay Notes pursuant to Section 10.10 of this Agreement (a
“ Debt Prepayment Transfer ”), the Company will
give written notice of such Debt Prepayment Transfer to each holder
of Notes. Such written notice shall contain, and such written
notice shall constitute, an irrevocable offer to prepay, at the
election of each holder, a portion of the Notes held by such holder
equal to such holder’s Ratable Portion of the Net Proceeds in
respect of such Debt Prepayment Transfer on a date specified in
such notice (the “ Transfer Prepayment Date ”)
that is not less than 30 days and not more than 60 days after the
date of such notice, together with interest on the amount to be so
prepaid accrued to the Transfer Prepayment Date. If the Transfer
Prepayment Date shall not be specified in such notice, the Transfer
Prepayment Date shall be the 45th day after the date of such
notice.
(b) Acceptance and Payment .
To accept such Transfer Prepayment Offer, a holder of Notes shall
cause a notice of such acceptance to be delivered to the Company
not later than 20 days after the date of such written notice from
the Company, provided, that failure to accept such offer in writing
within 20 days after the date of such written notice shall be
deemed to constitute a rejection of the Transfer Prepayment Offer.
If so accepted by any holder of a Note, such offered prepayment
(equal to such holder’s Ratable Portion of the Net Proceeds
in respect of such Debt Prepayment Transfer) shall be due and
payable on the Transfer Prepayment Date. Such offered prepayment
shall be made at 100% of the principal amount of such Notes being
so prepaid, together with interest on such principal amount then
being prepaid accrued to the Transfer Prepayment Date determined as
of the date of such prepayment.
Exhibit A-8
(c) Other Terms . Each offer
to prepay the Notes pursuant to this Section 8.8 shall be
accompanied by a certificate, executed by a Senior Financial
Officer of the Company and dated the date of such offer, specifying
(i) the Transfer Prepayment Date, (ii) the Net Proceeds
in respect of the applicable Debt Prepayment Transfer,
(iii) that such offer is being made pursuant to
Section 8.8 and Section 10.10 of this Agreement,
(iv) the principal amount of each Note offered to be prepaid
and that such prepayment would be without any Make-Whole Amount,
(v) the interest that would be due on each Note offered to be
prepaid, accrued to the Transfer Prepayment Date and (vi) in
reasonable detail, the nature of the Asset Disposition giving rise
to such Debt Prepayment Transfer and certifying that no Default or
Event of Default exists or would exist after giving effect to the
prepayment contemplated by such offer.”
(c) Section 9 –
Affirmative Covenants . Section 9 of the Existing Note
Purchase Agreement is hereby amended and restated to read as
follows:
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“9.
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AFFIRMATIVE
COVENANTS.
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Each of the Company and the
Guarantor covenants that so long as any of the Notes are
outstanding:
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9.1
|
Compliance
with Law .
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Without limiting Section 10.4,
each of the Company and the Guarantor will, and will cause each of
its respective Subsidiaries to, comply with all laws, ordinances or
governmental rules or regulations to which each of them is subject,
including, without limitation, ERISA, the USA Patriot Act and
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.
Each of the Company and the
Guarantor will, and will cause each of its respective 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. The foregoing insurance
requirements may be met through a captive insurance company;
provided that the coverage limits of insurance policies
written by the captive insurance company may not exceed
$100,000,000 (or its equivalent in other currencies) in the
aggregate at any time and the premiums
Exhibit A-9
charged by the captive insurance
company in any fiscal year may not exceed two times its statutory
surplus as of the end of such fiscal year. The Company and the
Guarantor shall, upon request, furnish to any holder a certificate
setting forth in summary form the nature and extent of the
insurance maintained pursuant to this Section 9.2.
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9.3
|
Maintenance
of Properties .
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Each of the Company and the
Guarantor will, and will cause each of its respective Subsidiaries
to, maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried
on in connection therewith may be properly conducted at all times,
provided that this Section shall not prevent the Guarantor 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 the Company or the Guarantor, as
applicable, has concluded that such discontinuance could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
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9.4
|
Payment of
Taxes and Claims .
|
Each of the Company and the
Guarantor will, and will cause each of its respective Subsidiaries
to, file all Material 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 the same
have become due and payable and before they have become delinquent
and all claims for which sums have become due and payable that have
or might become a Lien on properties or assets of the Guarantor or
any Subsidiary, provided that neither the Guarantor nor any
Subsidiary need pay any such tax, assessment, charge, levy or claim
if (a) the amount, applicability or validity thereof is
contested by the Guarantor or such Subsidiary on a timely basis in
good faith and in appropriate proceedings, and the Guarantor or a
Subsidiary has established adequate reserves therefor in accordance
with GAAP on the books of the Guarantor or such Subsidiary or
(b) the nonpayment of all such taxes, assessments, charges,
levies and claims in the aggregate could not reasonably be expected
to have a Material Adverse Effect.
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9.5
|
Limited
Liability Company Existence, etc .
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Subject to Section 10.2, the
Company will at all times preserve and keep in full force and
effect its limited liability company existence and the Guarantor
will at all times preserve and keep in full force and effect its
corporate existence. Subject to Section 10.2 and
Section 10.10, the Guarantor will at all times preserve and
keep in full force and effect the entity existence of each of its
other Subsidiaries (unless merged into the Guarantor or a
Subsidiary) and all rights and franchises of the Guarantor and its
Subsidiaries unless, in the good faith judgment of the Guarantor,
the termination of or failure to preserve and keep in full force
and effect such entity existence, right or franchise could not,
individually or in the aggregate, have a Material Adverse
Effect.
Exhibit A-10
Each of the Company and the
Guarantor will, and will cause each of its respective Subsidiaries
to, maintain proper books of record and account in conformity with
GAAP and all applicable requirements of any Governmental Authority
having legal or regulatory jurisdiction over the Company, the
Guarantor or such Subsidiary, as the case may be.
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9.7
|
Ranking of
Obligations .
|
The Company will ensure that its
payment obligations under this Agreement and the Notes will at all
times rank at least pari passu , without preference or
priority, with all other unsecured unsubordinated Indebtedness of
the Company. The Guarantor will ensure that its payment obligations
under this Agreement (including, without limitation, the
Unconditional Guaranty) will at all times rank at least pari
passu , without preference or priority, with all other
unsecured unsubordinated Indebtedness of the Guarantor.
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9.8
|
Ownership of
Company .
|
The Guarantor will cause the Company
to remain a Subsidiary of the Guarantor at all
times.”
(d) Section 10 –
Negative Covenants . Section 10 of the Existing Note
Purchase Agreement is hereby amended and restated to read as
follows:
Each of the Company and the
Guarantor covenants that so long as any of the Notes are
outstanding:
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10.1.
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Transactions
with Affiliates.
|
Neither the Company nor the
Guarantor will, and neither will permit any Subsidiary to, enter
into directly or indirectly any transaction or Material group of
related transactions (including without limitation the purchase,
lease, sale or exchange of properties of any kind or the rendering
of any service) with any Affiliate (other than the Guarantor, the
Company or another Subsidiary), except in the ordinary course and
pursuant to the reasonable requirements of the Company’s, the
Guarantor’s or such Subsidiary’s business and upon fair
and reasonable terms no less favorable to the Company, the
Guarantor or such Subsidiary than would be obtainable in a
comparable arm’s-length transaction with a Person not an
Affiliate.
Exhibit A-11
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10.2.
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Merger,
Consolidation, etc.
|
Neither the Company nor the
Guarantor will consolidate with or merge with any other Person or
convey, transfer or lease all or substantially all of its assets in
a single transaction or series of transactions to any Person
unless:
(a) the successor formed by such
consolidation or the survivor of such merger or the Person that
acquires by conveyance, transfer or lease all or substantially all
of the assets of the Company or the Guarantor as an entirety, as
the case may be, shall be a solvent corporation or limited
liability company organized and existing under the laws of the
United States or any State thereof (including the District of
Columbia), and, if the Company or the Guarantor is not such
corporation or limited liability company, (i) such corporation
or limited liability company shall have executed and delivered to
each holder of any Notes its assumption of the due and punctual
performance and observance of each covenant and condition of this
Agreement (in the case of a successor to the Guarantor, including,
without limitation, the Unconditional Guaranty) and the Notes in
form and substance reasonably satisfactory to the Required Holders
and (ii) such corporation or limited liability company shall
have caused to be delivered to each holder of any Notes an opinion
of nationally recognized independent counsel, or other independent
counsel reasonably satisfactory to the Required Holders, to the
effect that all agreements or instruments effecting such assumption
are enforceable in accordance with their terms and comply with the
terms hereof; and
(b) immediately before and
immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing.
No such conveyance, transfer or
lease of all or substantially all of the assets of the Company or
the Guarantor shall have the effect of releasing the Company or the
Guarantor or any successor corporation or limited liability company
that shall theretofore have become such in the manner prescribed in
this Section 10.2 from its liability under this Agreement (in
the case of the Guarantor, including, without limitation, the
Unconditional Guaranty) or the Notes.
Neither the Company nor the
Guarantor will, and neither will permit any Subsidiary to engage in
any business if, as a result, the general nature of the business in
which the Guarantor and its Subsidiaries, taken as a whole, would
then be engaged would be substantially changed from the general
nature of the business in which the Guarantor and its Subsidiaries,
taken as a whole, are engaged on October 1, 2008 as described
in Item 1 of Part I of the Guarantor’s Annual Report on
Form 10-K for the fiscal year ended September 30, 2008 or any
business reasonably related thereto, provided that, (a) in the
case of any Subsidiary acquired in a Permitted Acquisition, such
acquired Subsidiary (and its permitted successors) may also engage
in the type of business activities in which such acquired
Subsidiary was engaged immediately prior to such Permitted
Acquisition, or any business reasonably related thereto, and
(b) in the case of a Person holding assets of an Acquired
Business following a Permitted Acquisition, such Person may also
engage in the type of business activities in which such Acquired
Business was engaged immediately prior to such Permitted
Acquisition, or any business reasonably related thereto.
Exhibit A-12
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10.4.
|
Terrorism
Sanctions Regulations.
|
Neither the Company nor the
Guarantor will, and neither will permit any Subsidiary to,
(a) become a Person described or designated in the Specially
Designated Nationals and Blocked Persons List of the Office of
Foreign Assets Control or in Section 1 of the Anti-Terrorism
Order or (b) engage in any dealings or transactions with any
such Person.
Neither the Company nor the
Guarantor will, and neither will permit any Subsidiary to, create,
incur or permit to exist any Lien of any kind on any property owned
by the Company, the Guarantor or any such Subsidiary; provided,
however, that this Section 10.5 shall not apply to nor operate
to prevent:
(a) Permitted Liens; and
(b) Liens securing Indebtedness not
otherwise permitted by paragraph (a) of this
Section 10.5, provided that the outstanding principal amount
of Priority Debt does not at any time exceed 15% of Total Assets as
of the end of the Guarantor’s then most recently completed
fiscal quarter.
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10.6.
|
Interest
Coverage Ratio .
|
The Company and the Guarantor will
not, as of the last day of any fiscal quarter of the Guarantor,
permit the Interest Coverage Ratio to be less than 1.75 to
1.00.
The Company and the Guarantor will
not, as of the last day of any fiscal quarter of the Guarantor,
permit the Leverage Ratio to exceed 2.75 to 1.00.
The Company will not declare or pay
any Distributions to the Guarantor or any other Person, and the
Guarantor will not declare or pay any Distributions to any Person
if, at the time of any such Distribution, a Default or Event of
Default shall have occurred and be continuing hereunder.
The Company and the Guarantor will
not at any time permit the outstanding principal amount of Priority
Debt to exceed 15% of Total Assets as of the end of the most
recently completed fiscal quarter, provided, however, that no Lien
created pursuant to Section 10.5(b) shall secure any Primary
Senior Debt unless the Notes are equally and ratably secured by all
property subject to such Lien and no Subsidiary shall guaranty or
otherwise become obligated in respect of any Primary Senior Debt
unless such Subsidiary guaranties, or becomes similarly obligated
in respect of, the Notes, in each case pursuant to documentation
reasonably satisfactory to the Required Holders.
Exhibit A-13
Except as permitted under
Section 10.2, neither the Company nor the Guarantor will, and
neither will permit any Subsidiary to, make any Asset Disposition
unless:
(a) in the good faith opinion of the
Company or the Guarantor, as applicable, the Asset Disposition is
in exchange for consideration having a Fair Market Value at least
equal to that of the property exchanged and is in the best interest
of the Company or the Guarantor, as applicable, or such
Subsidiary;
(b) immediately after giving effect
to the Asset Disposition, no Default or Event of Default would
exist; and
(c) immediately after giving effect
to the Asset Disposition, the Disposition Value of all property
that was the subject of any Asset Disposition occurring during any
fiscal year would not exceed 15% of Total Assets determined as of
the end of the then most recently ended fiscal quarter of the
Guarantor.
If the Net Proceeds arising from any
Transfer are applied to a Debt Prepayment Application or a Property
Reinvestment Application within 365 days after such Transfer, then
such Transfer, only for the purpose of determining compliance with
subsection (c) of this Section 10.10 as of any date,
shall be deemed not to be an Asset Disposition as of the date of
such application.
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10.11.
|
Amendments
to Articles and Operating Agreement.
|
Neither the Company nor the
Guarantor will amend or modify their respective organizational
documents in any manner which would reasonably be expected to
materially and adversely affect the rights of the holders of Notes
hereunder (it being agreed that amendments for the purpose of
admitting additional members, or reflecting deaths, retirements,
resignations, withdrawals or removals of members will not be deemed
to have such an adverse effect and amendments permitting members to
incorporate and such corporations to become members of the Company
or the Guarantor shall not be deemed to have such an adverse
effect).”
(e) Section 11 –
Events of Default . Section 11 of the Existing Note
Purchase Agreement is hereby amended and restated to read as
follows:
“(a) the Company defaults in
the payment of any principal or Make-Whole Amount, if any, on any
Note or the Guarantor defaults in the payment under the
Unconditional Guaranty when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
Exhibit A-14
(b) the Company defaults in the
payment of any interest on any Note for more than five Business
Days after the same becomes due and payable; or
(c) the Company or the Guarantor
defaults in the performance of or compliance with any term
contained in Section 7.1(d) or Sections 9.5 (with respect to
the existence of the Company), 9.8, 10.2, 10.5 (with respect to
Liens voluntarily entered into by the Company), 10.6, 10.7, 10.8,
10.9, 10.10 or 10.11; or
(d) the Company or the Guarantor
defaults in the performance of or compliance with any term
contained herein (other than those referred to in Sections 11(a),
(b) and (c)) (i) which, in the case of a default with
respect to Sections 10.1 or 10.5 (with respect to Liens voluntarily
entered into by a Subsidiary of the Company), is not remedied
within 15 days, and (ii) in the case of any other default, is
not remedied within 30 days, in the case of defaults described in
clauses (i) and (ii), after the earlier of (x) a
Responsible Officer obtaining actual knowledge of such default and
(y) the Company or the Guarantor receiving written notice of
such default from any holder of a Note (any such written notice to
be identified as a “notice of default” and to refer
specifically to this Section 11(d)); or
(e) any representation or warranty
made in writing by or on behalf of the Company or the Guarantor or
by any officer of the Company or the Guarantor in this Agreement or
in any writing furnished in connection with the transactions
contemplated hereby proves to have been false or incorrect in any
material respect on the date as of which made; or
(f) (i) the Guarantor or any
Subsidiary is in default (as principal or as guarantor or other
surety) in the payment of any principal of or premium or make-whole
amount or interest on any Indebtedness that is outstanding in an
aggregate principal amount of at least $20,000,000 beyond any
period of grace provided with respect thereto, or (ii) the
Guarantor or any Subsidiary is in default in the performance of or
compliance with any term of any evidence of any Indebtedness in an
aggregate outstanding principal amount of at least $20,000,000 or
of any mortgage, indenture or other agreement relating thereto or
any other condition exists, and as a consequence of such default or
condition such Indebtedness has become, or has been declared (or
one or more Persons are entitled to declare such Indebtedness to
be), due and payable before its stated maturity or before its
regularly scheduled dates of payment, or (iii) as a
consequence of the occurrence or continuation of any event or
condition (other than the passage of time or the right of the
holder of Indebtedness to convert such Indebtedness into equity
interests), (x) the Guarantor or any Subsidiary has become
obligated to purchase or repay Indebtedness before its regular
maturity or before its regularly scheduled dates of payment in an
aggregate outstanding principal amount of at least $20,000,000, or
(y) one or more Persons have the right to require the
Guarantor or any Subsidiary so to purchase or repay such
Indebtedness; or
Exhibit A-15
(g) the Guarantor or any Subsidiary
(i) is generally not paying, or admits in writing its
inability to pay, its debts as they become due, (ii) files, or
consents by answer or otherwise to the filing against it of, a
petition for relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorgan
