EXHIBIT
10.1
EXECUTION COPY
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MINERALS TECHNOLOGIES INC.
$50,000,000 5.53% Series 2006-A Senior Notes,
Tranche 1, due October 5, 2013
$25,000,000 Floating Rate Series 2006-A Senior
Notes, Tranche 2, due October 5, 2013
________________
NOTE PURCHASE AGREEMENT
________________
Dated as of October 5, 2006
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TABLE OF
CONTENTS
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SECTION
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HEADING
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PAGE
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SECTION 1. Authorization of
Notes
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1
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Section 1.1 Description of
Series 2006-A Notes
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1
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Section 1.2 Provisions
Relating to the Series 2006-A Tranche 1 Notes
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1
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Section 1.3 Provisions
Relating to the Series 2006-A Tranche 2 Notes
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2
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SECTION 2. Sale and Purchase
of Notes; Additional Series of Notes
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2
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Section 2.1 Series 2006-A
Notes
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2
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Section 2.2 Additional Series
of Notes
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2
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SECTION 3. Closing
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4
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SECTION 4. Conditions to
Closing
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5
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Section 4.1 Representations
and Warranties
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5
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Section 4.2 Performance; No
Default
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5
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Section 4.3 Compliance
Certificates
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5
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Section 4.4 Opinions of
Counsel
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5
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Section 4.5 Purchase
Permitted By Applicable Law, Etc
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5
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Section 4.6 Sale of Other
Notes
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6
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Section 4.7 Payment of
Special Counsel Fees
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6
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Section 4.8 Private Placement
Number
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6
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Section 4.9 Changes in
Corporate Structure
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6
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Section 4.10 Funding
Instructions
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6
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Section 4.11 Proceedings and
Documents
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6
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SECTION 5. Representations
and Warranties of the Company
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6
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Section 5.1 Organization;
Power and Authority
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7
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Section 5.2 Authorization,
Etc
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7
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Section 5.3 Disclosure
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7
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Section 5.4 Organization and
Ownership of Shares of Subsidiaries
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7
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Section 5.5 Financial
Statements; Material Liabilities
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8
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Section 5.6 Compliance with
Laws, Other Instruments, Etc
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8
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Section 5.7 Governmental
Authorizations, Etc
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8
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Section 5.8 Litigation;
Observance of Statutes and Orders
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8
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TABLE OF
CONTENTS
(continued)
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SECTION
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HEADING
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PAGE
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Section 5.9 Taxes
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9
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Section 5.10 Title to
Property; Leases
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9
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Section 5.11 Licenses,
Permits, Etc
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9
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Section 5.12 Compliance with
ERISA
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10
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Section 5.13 Private Offering
by the Company
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11
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Section 5.14 Use of Proceeds;
Margin Regulations
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11
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Section 5.15 Existing
Debt
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11
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Section 5.16 Foreign Assets
Control Regulations, Etc
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12
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Section 5.17 Status under
Certain Statutes
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12
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Section 5.18 Environmental
Matters
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13
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Section 5.19 Notes Rank Pari
Passu
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13
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SECTION 6. Representations of
the Purchasers
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13
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Section 6.1 Purchase for
Investment
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13
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Section 6.2 Accredited
Investor
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14
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Section 6.3 Source of
Funds
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14
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SECTION 7. Information as to
Company
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15
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Section 7.1 Financial and
Business Information
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15
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Section 7.2 Officer's
Certificate
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18
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Section 7.3 Visitation
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18
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SECTION 8. Payment of the
Notes
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19
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Section 8.1 Required
Prepayments; Maturity
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19
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Section 8.2 Optional
Prepayments
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19
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Section 8.3 Allocation of
Partial Prepayments
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20
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Section 8.4 Maturity;
Surrender, Etc
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20
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Section 8.5 Purchase of
Notes
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21
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Section 8.6 Offer to Prepay
Upon Sale of Assets
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21
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Section 8.7 Make-Whole Amount
for the Series 2006-A Tranche 1 Notes
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22
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SECTION 9. Affirmative
Covenants
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24
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Section 9.1 Compliance with
Law
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24
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Section 9.2 Insurance
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24
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TABLE OF
CONTENTS
(continued)
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SECTION
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HEADING
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PAGE
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Section 9.3 Maintenance of
Properties
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24
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Section 9.4 Payment of
Taxes
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24
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Section 9.5 Corporate
Existence, Etc
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25
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Section 9.6 Notes to Rank
Pari Passu
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25
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Section 9.7 Books and
Records
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25
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Section 9.8 Designation of
Subsidiaries
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25
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Section 9.9 Subsidiary
Guarantors
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25
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SECTION 10. Negative
Covenants
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26
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Section 10.1 Consolidated
Debt to Consolidated Total Capitalization
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26
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Section 10.2 Priority
Debt
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26
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Section 10.3 Limitation on
Liens
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26
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Section 10.4 Merger and
Consolidation
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28
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Section 10.5 Sales of
Assets
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29
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Section 10.6 Transactions
with Affiliates
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30
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Section 10.7 Terrorism
Sanctions Regulations
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30
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Section 10.8 Limitation on
Unrestricted Subsidiaries
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30
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SECTION 11. Events of
Default
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30
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SECTION 12. Remedies on
Default, Etc
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33
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Section 12.1 Acceleration
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33
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Section 12.2 Other
Remedies
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34
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Section 12.3 Rescission
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34
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Section 12.4 No Waivers or
Election of Remedies, Expenses, Etc
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34
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SECTION 13. Registration;
Exchange; Substitution of Notes
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34
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Section 13.1 Registration of
Notes
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34
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Section 13.2 Transfer and
Exchange of Notes
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35
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Section 13.3 Replacement of
Notes
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35
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SECTION 14. Payments on Notes
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36
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Section 14.1 Place of
Payment
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36
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Section 14.2 Home Office
Payment
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36
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SECTION 15. Expenses, Etc
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36
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TABLE OF
CONTENTS
(continued)
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SECTION
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HEADING
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PAGE
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Section 15.1 Transaction
Expenses
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36
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Section 15.2 Survival
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37
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SECTION 16. Survival of Representations and Warranties; Entire
Agreement
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37
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SECTION 17. Amendment and Waiver
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37
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Section 17.1 Requirements
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37
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Section 17.2 Solicitation of
Holders of Notes
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38
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Section 17.3 Binding Effect,
Etc
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38
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Section 17.4 Notes Held by
Company, Etc
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39
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SECTION 18. Notices
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39
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SECTION 19. Reproduction of Documents
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40
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SECTION 20. Confidential Information
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40
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SECTION 21. Substitution of Purchaser
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41
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SECTION 22. Miscellaneous
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42
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Section 22.1 Successors and
Assigns
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42
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Section 22.2 Payments Due on
Non-Business Days
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42
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Section 22.3 Accounting
Terms
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42
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Section 22.4 Severability
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42
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Section 22.5 Construction
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42
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Section 22.6 Counterparts
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43
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Section 22.7 Governing Law
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43
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Section 22.8 Jurisdiction and
Process; Waiver of Jury Trial
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43
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ATTACHMENTS TO THE NOTE PURCHASE AGREEMENT:
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Schedule A
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Information Relating to Purchasers
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Schedule B
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Defined Terms
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Schedule 4.9
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Changes in Corporate Structure
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Schedule 5.3
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Disclosure Materials
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Schedule 5.4
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Subsidiaries of the Company and Ownership of Subsidiary
Stock
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Schedule 5.5
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Financial Statements
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Schedule 5.11
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Licenses, Permits, Etc.
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Schedule 5.15
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Existing Debt
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Schedule 5.18
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Environmental Matters
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Schedule 10.3
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Existing Liens
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Exhibit 1(a)
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Form of 5.53% Series 2006-A Senior Note, Tranche 1,
due October 5, 2013
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Exhibit 1(b)
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Form of Floating Rate Series 2006-A Senior Note, Tranche 2, due
October 5, 2013
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Exhibit 4.4(a)
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Form of Opinion of the General Counsel of the Company
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Exhibit 4.4(b)
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Form of Opinion of Special Counsel to the Purchasers
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Exhibit S
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Form of Supplement to Note Purchase Agreement
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MINERALS TECHNOLOGIES INC.
405 Lexington Avenue, 20
th Floor
New York, New York 10174-0002
$50,000,000 5.53% Series 2006-A Senior Notes,
Tranche 1, due October 5, 2013
$25,000,000 Floating Rate Series 2006-A Senior Notes, Tranche 2,
due October 5, 2013
Dated as of
October 5, 2006
TO THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
MINERALS
TECHNOLOGIES INC., a Delaware corporation (the "Company" ),
agrees with the Purchasers listed in the attached Schedule A
(the "Purchasers" ) to this Note Purchase Agreement (this
"Agreement" ) as follows:
SECTION 1. AUTHORIZATION OF
NOTES.
Section
1.1 Description of Series 2006-A
Notes. The Company will authorize the issue and sale of
$75,000,000 aggregate principal amount of its Series 2006-A Senior
Notes consisting of (a) $50,000,000 aggregate principal amount
of its 5.53% Series 2006-A Senior Notes, Tranche 1, due October 5,
2013 (the "Series 2006-A Tranche 1 Notes" ) and
(b) $25,000,000 aggregate principal amount of its Floating
Rate Series 2006-A Senior Notes, Tranche 2, due October 5, 2013
(the "Series 2006-A Tranche 2 Notes" ; the Series 2006-A
Tranche 2 Notes together with the Series 2006-A Tranche 1 Notes are
collectively referred to herein as the "Series 2006-A Notes"
). The Series 2006-A Notes together with each Series of Additional
Notes which may from time to time be issued pursuant to the
provisions of Section 2.2 are collectively referred to herein as
the "Notes" (such term shall also include any such notes
issued in substitution therefor pursuant to Section 13 of this
Agreement). The Series 2006-A Tranche 1 Notes and the Series 2006-A
Tranche 2 Notes shall be substantially in the forms set out in
Exhibit 1(a) and Exhibit 1(b), respectively, with such changes
therefrom, if any, as may be approved by the Purchasers and the
Company. Certain capitalized and other terms used in this Agreement
are defined in Schedule B; and references to a "Schedule" or
an "Exhibit" are, unless otherwise specified, to a Schedule or an
Exhibit attached to this Agreement.
Section
1.2 Provisions Relating to the
Series 2006-A Tranche 1 Notes . The Series 2006-A Tranche 1
Notes shall bear interest (computed on the basis of a 360-day year
of twelve 30-day months) on the unpaid principal thereof from the
date of issuance at the rate of 5.53% per annum, payable
semiannually in arrears on the fifth day of April and October in
each year commencing on April 5, 2007 and, to the extent permitted
by law, interest (so computed) on any overdue payment of interest,
on any overdue payment of principal and on any overdue payment of
Make-Whole Amount at the Default Rate, until such overdue amounts
shall have been paid.
Section
1.3 Provisions Relating to the
Series 2006-A Tranche 2 Notes.
(a) The Series 2006-A
Tranche 2 Notes shall bear interest (computed on the basis of a
360-day year and the actual number of days elapsed and, as to each
Interest Period or other period during which interest accrues, from
and including the first day thereof to but excluding the last day
thereof) on the unpaid principal thereof from the date of issuance
at a floating rate equal to the Adjusted LIBOR Rate for the
Interest Period in effect from time to time, payable quarterly in
arrears on each Interest Payment Date and, to the extent permitted
by applicable law, interest on any overdue payment of interest, on
any overdue payment of principal, on any overdue payment of
Prepayment Premium and on any overdue payment of Breakage Amount at
the Default Rate, until such overdue amounts shall have been
paid.
(b) The Adjusted LIBOR Rate shall be
determined by the Company, and notice thereof shall be given to the
holders of Series 2006-A Tranche 2 Notes, within five Business Days
after the beginning of each Interest Period, together with a copy
of the relevant screen used for the determination of LIBOR, a
calculation of the Adjusted LIBOR Rate for such Interest Period,
the number of days in such Interest Period, the Interest Payment
Date for such Interest Period and the amount of interest to be paid
to each holder of Notes on such Interest Payment Date. In the event
that the holders of more than 50% in aggregate principal amount of
the outstanding Series 2006-A Tranche 2 Notes do not concur with
such determination by the Company, as evidenced by a single written
notice to the Company given by such holders of the Series 2006-A
Tranche 2 Notes within 10 Business Days after receipt by such
holders of the notice delivered by the Company pursuant to the
immediately preceding sentence, the determination of the Adjusted
LIBOR Rate shall be made by such holders of the Series 2006-A
Tranche 2 Notes, and any such determination made in accordance with
the provisions of this Agreement, shall be conclusive and binding
absent manifest error.
SECTION
2. SALE AND PURCHASE OF NOTES;
ADDITIONAL SERIES OF NOTES.
Section
2.1 Series 2006-A Notes.
Subject to the terms and conditions of this Agreement, the Company
will issue and sell to each Purchaser and each Purchaser will
purchase from the Company, on the Closing Date provided for in
Section 3, the Series 2006-A Notes of the tranche and in the
principal amount specified opposite such Purchaser's name in
Schedule A at the purchase price of 100% of the principal amount
thereof. The obligations of each Purchaser hereunder are several
and not joint obligations and no Purchaser shall have any
obligation or any liability to any Person for the performance or
nonperformance by any other Purchaser hereunder.
Section
2.2 Additional Series of
Notes.
(a) The Company may, from
time to time, in its sole discretion but subject to the terms
hereof, issue and sell one or more additional Series of its
unsecured promissory notes under the provisions of this Agreement
pursuant to a supplement (a "Supplement" ) substantially in
the form of Exhibit S, provided that the aggregate
principal amount of
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Notes of all Series issued pursuant to all Supplements in
accordance with the terms of this Section 2.2 shall not exceed
$275,000,000.
(b) Each additional Series
of Notes (the "Additional Notes" ) issued pursuant to a
Supplement shall be subject to the following terms and
conditions:
(1) each Series of
Additional Notes, when so issued, shall be differentiated from all
previous Series by sequential alphabetical designation inscribed
thereon;
(2) Additional Notes of the same Series may
consist of more than one different and separate tranches and may
differ with respect to outstanding principal amounts, maturity
dates, interest rates and premiums, if any, and price and terms of
redemption or payment prior to maturity, but all such different and
separate tranches of the same Series shall, if and to the extent
this Agreement requires or permits voting by Series, vote as a
single class and constitute one Series;
(3) each Series of
Additional Notes shall be dated the date of issue, bear interest at
such rate or rates, mature on such date or dates, be subject to
such put rights and mandatory and optional prepayment on the dates
and at the premiums, if any, have such additional or different
conditions precedent to closing, such representations and
warranties and such additional covenants and defaults as shall be
specified in the Supplement under which such Additional Notes are
issued and upon execution of any such Supplement, this Agreement
shall be deemed amended (i) to reflect such additional put rights,
covenants and defaults without further action on the part of the
holders of the Notes outstanding under this Agreement,
provided , that any such additional put rights, covenants
and defaults shall inure to the benefit of all holders of Notes so
long as any Additional Notes issued pursuant to such Supplement
remain outstanding and (ii) to reflect such representations and
warranties as are contained in such Supplement for the benefit of
the holders of such Additional Notes in accordance with the
provisions of Section 16;
(4) each Series of Additional Notes issued
under this Agreement shall be in substantially the form of
Exhibit 1 to Exhibit S with such variations, omissions
and insertions as are necessary or permitted hereunder;
(5) the minimum principal
amount of any Note issued under a Supplement shall be $100,000,
except as may be necessary to evidence the outstanding amount of
any Note originally issued in a denomination of $100,000 or
more;
(6) all Additional Notes shall constitute
Senior Debt of the Company and shall rank pari passu with
all other outstanding Notes; and
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(7) no Additional Notes
shall be issued hereunder if at the time of issuance thereof and
after giving effect to the application of the proceeds thereof, (i)
any Default or Event of Default shall have occurred and be
continuing or (ii) a waiver of Default or Event of Default shall be
in effect.
(c) The right of the Company
to issue, and the obligation of the Additional Purchasers to
purchase, any Additional Notes shall be subject to the following
conditions precedent, in addition to the conditions specified in
the Supplement pursuant to which such Additional Notes may be
issued:
(1) a duly authorized Senior
Financial Officer shall execute and deliver to each Additional
Purchaser and each holder of Notes an Officer's Certificate dated
the date of issue of such Series of Additional Notes stating that
such officer has reviewed the provisions of this Agreement
(including all Supplements) and setting forth the information and
computations (in sufficient detail) required to establish whether
after giving effect to the issuance of the Additional Notes and
after giving effect to the application of the proceeds thereof, the
Company is in compliance with the requirements of Section 10.1
on such date;
(2) the Company and each such Additional
Purchaser shall execute and deliver a Supplement substantially in
the form of Exhibit S;
(3) each Additional
Purchaser shall have confirmed in the Supplement that the
representations set forth in Section 6 are true with respect
to such Additional Purchaser on and as of the date of issue of such
Additional Notes; and
(4) each Subsidiary Guarantor, if any, shall
execute and deliver such documents and agreements as any Additional
Purchaser or other holder of Notes may reasonably require to
confirm that its Subsidiary Guaranty guarantees the obligations of
the Company under such Additional Notes and under each other Series
of Notes outstanding.
SECTION 3. CLOSING.
The sale and purchase of the Series 2006-A
Notes to be purchased by each Purchaser shall occur at the offices
of Schiff Hardin LLP, 623 Fifth Avenue, 28 th Floor, New
York, New York 10022 at 11:00 a.m. New York, New York time, at a
closing on October 5, 2006 or on such other Business Day
thereafter as may be agreed upon by the Company and the Purchasers
(the "Closing Date" ). On the Closing Date, the Company will
deliver to each Purchaser the Series 2006-A Notes of each tranche
to be purchased by such Purchaser in the form of a single Series
2006-A Note of such tranche (or such greater number of Series
2006-A Notes of such tranche in denominations of at least $100,000
as such Purchaser may request) dated the Closing Date and
registered in such Purchaser's name (or in the name of its
nominee), against delivery by such Purchaser to the Company or its
order of immediately available funds in the amount of the purchase
price therefor by wire transfer of immediately available funds for
the account of the Company in compliance with the funding
instructions described in Section 4.10. If, on the
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Closing Date, the Company shall fail to tender such Series
2006-A Notes to any Purchaser as provided above in this
Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to any Purchaser's
satisfaction, such Purchaser shall, at its election, be relieved of
all further obligations under this Agreement, without thereby
waiving any rights such Purchaser may have by reason of such
failure or such nonfulfillment.
SECTION
4. Conditions to Closing.
Each Purchaser's obligation to purchase and
pay for the Series 2006-A Notes to be sold to such Purchaser on the
Closing Date is subject to the fulfillment to such Purchaser's
satisfaction, prior to or on the Closing Date, of the following
conditions:
Section
4.1 Representations and
Warranties. The representations and warranties of the Company
in this Agreement shall be correct when made and on the Closing
Date.
Section
4.2 Performance; No Default
. The Company shall have performed and complied with all agreements
and conditions contained in this Agreement required to be performed
or complied with by the Company prior to or on the Closing Date,
and immediately after giving effect to the issue and sale of the
Series 2006-A Notes (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.
Section
4.3 Compliance
Certificates.
(a) Officer's
Certificate. The Company shall have delivered to such Purchaser
an Officer's Certificate, dated the Closing Date, certifying that
the conditions specified in Sections 4.1, 4.2 and 4.9 have
been fulfilled.
(b) Secretary's Certificate. The
Company shall have delivered to such Purchaser a certificate of its
Secretary or an Assistant Secretary, dated the Closing Date,
certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and
delivery of the Series 2006-A Notes and this Agreement.
Section
4.4 Opinions of Counsel .
Such Purchaser shall have received opinions in form and substance
satisfactory to such Purchaser, dated the Closing Date
(a) from Kirk G. Forrest, Esq., General Counsel of the
Company, covering the matters set forth in Exhibit 4.4(a) and
covering such other matters incident to the transactions
contemplated hereby as such Purchaser or special counsel to the
Purchasers may reasonably request (and the Company hereby instructs
its counsel to deliver such opinion to the Purchasers) and
(b) from Schiff Hardin LLP, special counsel to the Purchasers
in connection with such transactions, substantially in the form set
forth in Exhibit 4.4(b) and covering such other matters
incident to such transactions as such Purchaser may reasonably
request.
Section
4.5 Purchase Permitted By
Applicable Law, Etc . On the Closing Date, such Purchaser's
purchase of Series 2006-A Notes shall (a) be permitted by the
laws and regulations of each jurisdiction to which such Purchaser
is subject, without recourse to provisions (such as
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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,
(b) not violate any applicable law or regulation (including,
without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System) and (c) not subject
such Purchaser to any tax, penalty or liability under or pursuant
to any applicable law or regulation. If requested by any Purchaser,
such Purchaser shall have received an Officer's Certificate
certifying as to such matters of fact as such Purchaser may
reasonably specify to enable such Purchaser to determine whether
such purchase is so permitted.
Section
4.6 Sale of Other Notes . On
the Closing Date, the Company shall sell to each other Purchaser
and each other Purchaser shall purchase the Series 2006-A Notes to
be purchased by it on the Closing Date as specified in
Schedule A.
Section
4.7 Payment of Special Counsel
Fees . Without limiting the provisions of Section 15.1,
the Company shall have paid on or before the Closing Date, the
reasonable fees, reasonable charges and reasonable disbursements of
special counsel to the Purchasers referred to in
Section 4.4(b) to the extent reflected in a statement of such
counsel rendered to the Company at least one Business Day prior to
the Closing Date.
Section
4.8 Private Placement Number
. A Private Placement Number issued by Standard & Poor's CUSIP
Service Bureau (in cooperation with the SVO) shall have been
obtained for each tranche of the Series 2006-A Notes.
Section
4.9 Changes in Corporate
Structure . Except as disclosed in Schedule 4.9, the
Company shall not have changed its jurisdiction of incorporation or
been a party to any merger or consolidation, or 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.
Section
4.10 Funding Instructions .
At least three Business Days prior to the Closing Date, such
Purchaser shall have received written instructions signed by a
Responsible Officer on letterhead of the Company directing the
manner of the payment of funds and setting forth (a) the name
and address of the transferee bank, (b) such transferee bank's
ABA number and (c) the account name and number into which the
purchase price for the Series 2006-A Notes is to be deposited.
Section
4.11 Proceedings and
Documents . All corporate and other organizational proceedings
in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions
shall be reasonably satisfactory to such Purchaser and special
counsel to the Purchasers, and such Purchaser and special counsel
to the Purchasers shall have received all such counterpart
originals or certified or other copies of such documents as such
Purchaser or special counsel to the Purchasers may reasonably
request.
SECTION
5. REPRESENTATIONS AND
WARRANTIES OF THE COMPANY.
The Company represents and warrants to each
Purchaser that:
-6-
Section
5.1 Organization; Power and
Authority . 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 would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. 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 and proposes to transact, to execute and
deliver this Agreement and the Series 2006-A Notes and to perform
the provisions hereof and thereof.
Section
5.2 Authorization, Etc .
This Agreement and the Series 2006-A Notes to be issued on the
Closing Date have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement constitutes,
and upon execution and delivery thereof each such Series 2006-A
Note will constitute, a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by
(1) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (2) general principles of
equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
Section
5.3 Disclosure . This
Agreement, the documents, certificates or other writings identified
in Schedule 5.3 and the financial statements listed in
Schedule 5.5, in each case, delivered to the Purchasers prior
to September 21, 2006 (this Agreement, such documents,
certificates or other writings and such financial statements being
referred to, collectively, as the "Disclosure Documents" ),
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 the light of the circumstances
under which they were made. Except as disclosed in the Disclosure
Documents, since December 31, 2005, there has been no change
in the financial condition, operations, business or properties of
the Company or any Restricted Subsidiary except changes that,
individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.
Section
5.4 Organization and Ownership
of Shares of Subsidiaries.
(a) Schedule 5.4
contains (except as noted therein) a complete and correct list of
the Company's Restricted and Unrestricted 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 the
Company and each other Subsidiary.
(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 the Company and its
Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary
free and clear of any Lien (except as otherwise disclosed in
Schedule 5.4).
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(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 would 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.
Section
5.5 Financial Statements;
Material Liabilities . The Company has delivered to each
Purchaser copies of the financial statements of the Company and its
Subsidiaries listed on Schedule 5.5. All such financial
statements (including in each case the related schedules and notes)
fairly present, in all material respects, the consolidated
financial position of the Company 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). The Company
and its Subsidiaries do not have any Material liabilities that are
not disclosed on such financial statements or otherwise disclosed
in the Disclosure Documents.
Section
5.6 Compliance with Laws, Other
Instruments, Etc . The execution, delivery and performance by
the Company of this Agreement and the Series 2006-A Notes will not
(a) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of
any property of the 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 Material agreement or
instrument to which the Company or any Subsidiary is bound or by
which the Company or any Subsidiary or any of their respective
properties may be bound or affected, (b) conflict with or
result in a breach of any of the terms, conditions or provisions of
any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority applicable to the Company or any Subsidiary
or (c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company
or any Subsidiary.
Section
5.7 Governmental Authorizations,
Etc . No consent, approval or authorization of, or
registration, filing or declaration with, any Governmental
Authority by the Company is required in connection with the
execution, delivery or performance by the Company of this Agreement
or the Series 2006-A Notes.
Section
5.8 Litigation; Observance of
Statutes and Orders.
(a) There are no actions,
suits, investigations or proceedings pending or, to the knowledge
of the Company, threatened against or affecting the Company or any
Restricted Subsidiary or any property of the Company or any
Restricted Subsidiary in any court or before any arbitrator of any
kind or before or by any Governmental Authority
-8-
that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
(b) Neither the Company nor
any Restricted Subsidiary is in default under any term of 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 or the USA Patriot Act) of any Governmental
Authority, which default or violation, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect.
Section
5.9 Taxes . The Company and
its Subsidiaries have filed all income 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 payable by them, to the extent such taxes and
assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (a) the
amount of which is not, individually or in the aggregate, Material
or (b) the amount, applicability or validity of which is
currently being contested in good faith by appropriate proceedings
and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP.
The federal income tax liabilities of the Company and its
Subsidiaries have been finally determined (whether by reason of
completed audits or the statute of limitations having run) for all
fiscal years up to and including the fiscal year ended December 31,
2002.
Section
5.10 Title to Property;
Leases . The Company and its Restricted Subsidiaries have good
and sufficient title to their respective Material properties,
including all such properties reflected in the most recent audited
balance sheet referred to in Section 5.5 or purported to have
been acquired by the Company or any Restricted 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, except for those defects in title
that, individually or in the aggregate, would not have a Material
Adverse Effect. All Material leases are valid and subsisting and
are in full force and effect in all material respects.
Section
5.11 Licenses, Permits, Etc.
Except as disclosed in Schedule 5.11,
(a) the Company and its
Restricted Subsidiaries own or possess all licenses, permits,
franchises, authorizations, patents, copyrights, proprietary
software, service marks, trademarks, trade names and domain names,
or rights thereto, that individually or in the aggregate are
Material, without known conflict with the rights of others;
(b) to the best knowledge of the Company, no
product of the Company or any of its Restricted Subsidiaries
infringes in any material respect any license, permit, franchise,
authorization, patent, copyright, proprietary software, service
mark, trademark, trade name, domain name or other right owned by
any other Person; and
(c) to the best knowledge of
the Company, there is no Material violation by any Person of any
right of the Company or any of its Restricted Subsidiaries with
respect to any patent, copyright, proprietary software, service
mark, trademark, trade name,
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domain name or other right owned or used by the Company or any
of its Restricted Subsidiaries.
Section
5.12 Compliance with ERISA
.
(a) 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 would not reasonably be
expected to result in, a Material Adverse Effect. Neither 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 would reasonably be expected
to result in the incurrence of any such liability by the Company or
any ERISA Affiliate, or in the imposition of any Lien on any of the
rights, properties or assets of 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 or Section 4068 of ERISA, 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 meanings
specified in Section 3 of ERISA.
(c) The Company and its
ERISA Affiliates have not incurred any 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 post-retirement benefit
obligation (determined as of the last day of the Company'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 the Company and its Subsidiaries
is not Material.
(e) The execution and
delivery of this Agreement and the issuance and sale of the Series
2006-A Notes hereunder to each Purchaser will not involve any
transaction with respect to such Purchaser that is subject to the
prohibitions of Section 406 of ERISA or in connection with
which a tax would be imposed pursuant to
Section 4975(c)(1)(A)-(D) of the Code. The representation by
the Company to each Purchaser in the first sentence of this
Section 5.12(e) is made in reliance upon and subject to the
accuracy of such Purchaser's representation in Section 6.3 as
to the sources of the
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funds to be used to pay the purchase price of the Series 2006-A
Notes to be purchased by such Purchaser.
Section
5.13 Private Offering by the
Company . Neither the Company nor anyone acting on the
Company's behalf has offered the Series 2006-A 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 the Purchasers and not more than five
other Institutional Investors of the type described in clause (c)
of the definition thereof, each of which has been offered the
Series 2006-A Notes in connection with a private sale for
investment. Neither the Company nor anyone acting on the Company's
behalf has taken, or will take, any action that would subject the
issuance or sale of the Series 2006-A Notes to the registration
requirements of Section 5 of the Securities Act or to the
registration requirements of any securities or blue sky laws of any
applicable jurisdiction. It is understood that, in making the
representation set forth in the last sentence of this
Section 5.13, the Company is relying, to the extent
applicable, upon the representations of the Purchasers set forth in
Sections 6.1 and 6.2.
Section
5.14 Use of Proceeds; Margin
Regulations . The Company will apply the proceeds of the sale
of the Series 2006-A Notes to refinance existing indebtedness and
for other general corporate purposes of the Company. No part of the
proceeds from the sale of the Series 2006-A Notes hereunder will be
used, directly or indirectly, for the purpose of buying or carrying
any margin stock within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System
(12 CFR 221), 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 more than 5% of the value of the consolidated
total assets of the Company and its Subsidiaries and the Company
does not have any present intention that margin stock will
constitute more than 5% 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 U.
Section
5.15 Existing Debt.
(a) Except as described
therein, Schedule 5.15 sets forth a complete and correct list
of all outstanding Debt of the Company and its Restricted
Subsidiaries as of September 28, 2006 (including a description
of the obligors and obligees, principal amount outstanding and
collateral therefor, if any, and Guaranty thereof, if any), since
which date there has been no Material change in the amounts,
interest rates, sinking funds, installment payments or maturities
of the Debt of the Company or its Restricted Subsidiaries. Neither
the Company nor any Restricted Subsidiary is in default and no
waiver of default is currently in effect, in the payment of any
principal or interest on any Debt of the Company or such Restricted
Subsidiary, and no event or condition exists with respect to any
Debt of the Company or any Restricted Subsidiary the outstanding
principal amount of which exceeds $500,000, that would permit (or
that with notice or the lapse of time, or both, would permit) one
or more Persons to cause such Debt to become due and payable before
its stated maturity or before its regularly scheduled dates of
payment.
-11-
(b) Neither the Company nor
any Subsidiary is a party to, or otherwise subject to any provision
contained in, any instrument evidencing Debt of the Company or such
Subsidiary, any agreement relating thereto or any other agreement
(including, but not limited to, its charter or other organizational
document) which limits the amount of, or otherwise imposes
restrictions on the incurring of, Debt of the Company, except as
specifically indicated in Schedule 5.15.
Section
5.16 Foreign Assets Control
Regulations, Etc.
(a) Neither the sale of the
Series 2006-A Notes by the Company hereunder nor its use of the
proceeds thereof will violate the Trading with the Enemy Act, as
amended, or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or
executive order relating thereto.
(b) Neither the Company nor any Subsidiary is
(1) 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 (2) to
the best knowledge of the Company, engaged in any dealings or
transactions with any such Person. The Company and its Subsidiaries
are in compliance, in all material respects, with the USA Patriot
Act.
(c) No part of the proceeds
from the sale of the Series 2006-A Notes hereunder will be used,
directly or indirectly, for any payments to any governmental
official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an
official capacity, in order to obtain, retain or direct business or
obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended, assuming in all
cases that such Act applies to the Company.
Section
5.17 Status under Certain
Statute s. Neither the Company nor any Restricted Subsidiary is
an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, or is subject
to regulation under the Public Utility Holding Company Act of 2005,
as amended, the ICC Termination Act of 1995, as amended, or the
Federal Power Act, as amended.
-12-
Section 5.18
Environmental Matters. Except as disclosed in
Schedule 5.18:
(a) neither the Company nor
any Restricted Subsidiary has knowledge of any liability or has
received any notice of any liability, and no proceeding has been
instituted raising any liability against the Company or any of its
Restricted 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 would not
reasonably be expected to result in a Material Adverse Effect;
(b) neither the Company nor any Restricted
Subsidiary has knowledge of any facts which would give rise to any
liability, 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 would not reasonably be expected to result in a
Material Adverse Effect;
(c) neither the Company nor
any of its Restricted Subsidiaries has stored any Hazardous
Materials on real properties now or formerly owned, leased or
operated by any of them or has disposed of any Hazardous Materials
in each case in a manner contrary to any Environmental Laws in each
case in any manner that would reasonably be expected to result in a
Material Adverse Effect; and
(d) all buildings on all real properties now
owned, leased or operated by the Company or any of its Restricted
Subsidiaries are in compliance with applicable Environmental Laws,
except where failure to comply would not reasonably be expected to
result in a Material Adverse Effect.
Section
5.19 Notes Rank Pari Passu.
The obligations of the Company under this Agreement and the
Series 2006-A Notes rank pari passu in right of payment
with all other unsecured Senior Debt (actual or contingent) of the
Company, including, without limitation, all unsecured Senior Debt
of the Company described in Schedule 5.15.
SECTION
6. REPRESENTATIONS OF THE
PURCHASERS.
Section
6.1 Purchase for Investment
. Each Purchaser severally represents that it is purchasing the
Series 2006-A Notes for its own account or for one or more separate
accounts maintained by it or for the account of one or more pension
or trust funds and not with a view to the distribution thereof,
provided that any Notes purchased by Banc of America
Securities LLC on the Closing Date may, in the alternative, be
purchased with the intent to be resold to a Qualified Institutional
Buyer pursuant to Rule 144A of the Securities Act, provided
further that, in any case, the disposition of such
Purchaser's or such pension or trust fund's property shall at all
times be within such Purchaser's or such pension or trust fund's
control. Each Purchaser understands that the Series 2006-A 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
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registration nor such an exemption is required by law, and that
the Company is not required to register the Series 2006-A
Notes.
Section
6.2 Accredited Investor .
Each Purchaser represents that it is an "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) acting for its own account (and not for the
account of others) or as a fiduciary or agent for others (which
others are also "accredited investors"). Each Purchaser further
represents that such Purchaser has had the opportunity to ask
questions of the Company and received answers concerning the terms
and conditions of the sale of the Series 2006-A Notes.
Section
6.3 Source of Funds . Each
Purchaser severally represents that at least one of the following
statements is an accurate representation as to each source of funds
(a "Source" ) to be used by such Purchaser to pay the
purchase price of the Series 2006-A Notes to be purchased by such
Purchaser 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 Class
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 NAIC (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 (1)
an insurance company pooled separate account, within the meaning of
PTE 90-1 or (2) a bank collective investment fund, within the
meaning of 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
-14-
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 (1) the identity of such QPAM and (2) 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(d) of the INHAM Exemption) owns a 5% or
more interest in the Company and (1) the identity of such INHAM and
(2) 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 6.3, the terms "employee benefit
plan," "governmental plan" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of
ERISA.
SECTION
7. INFORMATION AS TO
COMPANY.
Section
7.1 Financial and Business
Information . The Company shall deliver to each holder of Notes
that is an Institutional Investor:
(a) Quarterly
Statements — within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other
than the last quarterly fiscal period of each such fiscal year),
copies of:
(1) a consolidated balance
sheet of the Company and its Subsidiaries as at the end of such
quarter, and
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(2) consolidated statements
of income, changes in shareholders' equity and cash flows of the
Company 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 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 Company's Quarterly
Report on 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);
(b) Annual Statements
— within 105 days after the end of each fiscal year of the
Company, copies of:
(1) a consolidated balance
sheet of the Company and its Subsidiaries, as at the end of such
year, and
(2) consolidated statements of income, changes
in shareholders' equity and cash flows of the Company and its
Subsidiaries, for such year,
setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP, and accompanied by an opinion thereon of
independent certified public accountants of recognized national
standing, which opinion shall state that such financial statements
present fairly, in all material respects, the financial position of
the companies being reported upon and their results of operations
and cash flows and have been prepared in conformity with GAAP, and
that the examination of such accountants in connection with such
financial statements has been made in accordance with generally
accepted auditing standards, and that such audit provides a
reasonable basis for such opinion in the circumstances,
provided that the delivery within the time period specified
above of the Company's Annual Report on Form 10-K for such fiscal
year (together with the Company'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 shall be deemed to satisfy the requirements of this
Section 7.1(b);
(c) SEC and Other
Reports — except for filings referred to in
Section 7.1(a) and (b) above, promptly upon their becoming
available and, to the extent applicable, one copy of (1) each
financial statement, report, notice or proxy statement sent by the
Company or any Subsidiary to its principal lending banks as a whole
(excluding information sent to such banks in the ordinary course of
administration of a bank facility, such as information relating to
pricing and borrowing availability) or to its public securities
holders generally and (2) each regular or periodic report,
each registration
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statement that shall have become effective (other than
registration statements on Form S-8 relating to employee
benefit plans and without exhibits except as expressly requested by
such holder), and each final prospectus and all amendments thereto
filed by the Company or any Subsidiary with the SEC,
provided that, in the case of clause (2) of this Section
7.1(c), to the extent that any such report or registration
statement is not Material, the Company may instead deliver it to
the holders of the Notes concurrently with the delivery of its next
officer's certificate pursuant to Section 7.2.
(d) Notice of Default or
Event of Default — promptly, and in any event within five
Business Days after a Responsible Officer becomes aware of the
existence of any Default or Event of Default, a written notice
specifying the nature and period of existence thereof and what
action the Company is taking or proposes to take with respect
thereto;
(e) ERISA Matters — promptly, and
in any event within five Business Days after a Responsible Officer
becomes aware of any of the following, a written notice setting
forth the nature thereof and the action, if any, that the Company
or an ERISA Affiliate proposes to take with respect thereto:
(1) 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 thereof; or
(2) the taking by the PBGC of steps to
institute, or the threatening by the PBGC of the institution of,
proceedings under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan, or the
receipt by the Company 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
(3) any event, transaction
or condition that would result in the incurrence of any liability
by the Company or any ERISA Affiliate pursuant to Title I or
IV of ERISA or the imposition of a penalty or excise tax under the
provisions of the Code relating to employee benefit plans, or the
imposition of any Lien on any of the rights, properties or assets
of the Company 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, would reasonably be expected to have a
Material Adverse Effect;
(f) Supplements
— promptly and in any event within 10 Business Days after the
execution and delivery of any Supplement, a copy thereof; 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 Company or any of its Subsidiaries or relating to
the ability of the
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Company to perform its obligations hereunder and under the Notes
as from time to time may be reasonably requested by any such holder
of Notes or such information regarding the Company required to
satisfy the requirements of 17 C.F.R. 𨳨A, as amended
from time to time, in connection with any contemplated transfer of
the Notes.
Section
7.2 Officer's Certificate .
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) shall be
accompanied by a certificate of a Senior Financial Officer setting
forth:
(a) Covenant
Compliance — the information (including reasonably
detailed calculations) required in order to establish whether the
Company was in compliance with the requirements of
Section 10.1 during the quarterly or annual period covered by
the statements then being furnished (including with respect to such
Section, if applicable, the calculations of the maximum or minimum
amount, ratio or percentage, as the case may be, permissible under
the terms of such Section, and the calculation of the amount, ratio
or percentage then in existence); provided that, if at any
time during the quarterly or annual period covered by the
statements then being furnished, (1) the aggregate amount of all
Priority Debt exceeded an amount equal to 10% of Consolidated Net
Worth determined as of the end of the immediately preceding fiscal
quarter of the Company, then such certificate shall include
reasonably detailed calculations required in order to determine
whether the Company was in compliance with Section 10.2 and Section
10.3 for such quarterly or annual period and (2) the Company and
its Restricted Subsidiaries shall have sold, leased or otherwise
disposed of assets (other than a sale, lease or other disposition
described in clauses (1), (2) or (3) of the last paragraph of
Section 10.5 or the proceeds of which were applied in accordance
with paragraph (a) or (b) of Section 10.5), the book value of
which, when added to the book value of all other assets sold,
leased or otherwise disposed of by the Company and its Restricted
Subsidiaries during the period of 12 consecutive months ending on
the date of such sale, lease or other disposition, exceeded 5% of
the book value of Consolidated Total Assets determined as of the
end of the immediately preceding fiscal quarter of the Company,
then such certificate shall include reasonably detailed
calculations required in order to determine whether the Company was
in compliance with Section 10.5 at the time of each such sale,
lease or other disposition; and
(b) Event of Default — 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 Company 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 or, if any such condition or event existed or exists
specifying the nature and period of existence thereof and what
action the Company shall have taken or proposes to take with
respect thereto.
Section
7.3 Visitation . The Company
shall permit the representatives of each holder of Notes that is an
Institutional Investor:
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(a) No Default
— if no Default or Event of Default then exists, at the
expense of such holder and upon reasonable prior notice to the
Company, to visit the principal executive office of the Company, to
discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and (with the consent of
the Company, which consent will not be unreasonably withheld) to
visit the other offices and properties of the Company and each
Restricted 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 Company
or any Restricted Subsidiary, to examine all their respective books
of account, records, reports and other papers, to make copies and
extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and
independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and
accounts of the Company and its Subsidiaries), all at such times
and as often as may be requested.
SECTION
8. PAYMENT OF THE NOTES.
Section
8.1 Required Prepayments;
Maturity.
(a) Series 2006-A
Tranche 1 Notes. The Series 2006-A Tranche 1 Notes shall not be
subject to any required prepayments and the entire unpaid principal
amount of the Series 2006-A Tranche 1 Notes shall become due and
payable on October 5, 2013.
(b) Series 2006-A Tranche 2 Notes. The
Series 2006-A Tranche 2 Notes shall not be subject to any required
prepayments and the entire unpaid principal amount of the Series
2006-A Tranche 2 Notes shall become due and payable on October 5,
2013.
(c) Required Prepayment
of Additional Notes . Each Series and tranche, if applicable,
of Additional Notes shall be subject to required prepayments as
specified in the Supplement pursuant to which such Series and
tranche, if applicable, of Additional Notes were issued.
Section
8.2 Optional Prepayments
.
(a) Optional Prepayments
of Fixed Rate Notes. The Company may, at its option, upon
notice as provided below, prepay at any time all, or from time to
time any part of, any Series of Fixed Rate Notes, in an amount not
less than 10% of the original aggregate principal amount of such
Series of Fixed Rate Notes in the case of a partial prepayment, at
100% of the principal amount so prepaid, plus accrued and
unpaid interest, plus the applicable Make-Whole Amount, if
any, determined for the prepayment date with respect to such
principal amount.
(b) Optional Prepayments of Floating Rate
Notes. The Company may, at its option, upon notice as provided
below, prepay at any time all, or from time to time any part of,
any Series or tranche of Floating Rate Notes, in an amount not less
than 10% of
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the original aggregate principal amount of such Series or
tranche of Floating Rate Notes in the case of a partial prepayment,
at 100% of the principal amount so prepaid, plus accrued and
unpaid interest, plus the applicable Prepayment Premium, if
any, determined for the prepayment date with respect to such
principal amount and, if such prepayment occurs on any date other
than an Interest Payment Date, the applicable Breakage Amount, if
any.
(c) Optional Prepayment
following Default. Notwithstanding anything contained herein to
the contrary, the Company may not prepay any Series or tranche, if
applicable, of Notes under Section 8.2(a) or 8.2(b) if a
Default or Event of Default shall have occurred and be continuing
or would result from such optional prepayment unless all Notes at
the time outstanding are prepaid on a pro rata basis.
(d) Notice of Optional Prepayments. The
Company will give each holder of Notes of the Series and tranche to
be prepaid (with a copy to each other holder of Notes) written
notice of each optional prepayment of Notes of such Series and
tranche under this Section 8.2 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 (which shall be a Business
Day), the aggregate principal amount of the Notes of each Series
and tranche to be prepaid on such date, the principal amount of
each Note held by such holder to be prepaid (determined in
accordance with Section 8.3), 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, if any, or
Prepayment Premium, if any, as applicable, 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. In the case of prepayments of Fixed Rate Notes, two
Business Days prior to such prepayment, the Company shall deliver
to each holder of Fixed Rate Notes a certificate of a Senior
Financial Officer specifying the calculation of the applicable
Make-Whole Amount as of the specified prepayment date.
Section
8.3 Allocation of Partial
Prepayments . In the case of each partial prepayment of the
Notes pursuant to the provisions of Section 8.2, the principal
amount of the Notes of the Series and tranche, if applicable, to be
prepaid shall be allocated among all of the Notes of such Series
and tranche, if applicable, at the time outstanding in proportion,
as nearly as practicable, to the respective unpaid principal
amounts thereof. All regularly scheduled partial prepayments made
with respect to any Series of Additional Notes pursuant to any
Supplement shall be allocated as provided therein.
Section
8.4 Maturity; Surrender,
Etc. In the case of each prepayment of Notes pursuant to this
Section 8, the principal amount of each Note to be prepaid
shall mature and become due and payable on the date fixed for such
prepayment (which shall be a Business Day), together with interest
on such principal amount accrued to such date and the applicable
Make-Whole Amount, if any, or Prepayment
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Premium, if any, and Breakage 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, or Prepayment Premium, if any, and
Breakage 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.
Section
8.5 Purchase of Notes . 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 of any Series except (a) upon the payment or
prepayment of the Notes of any Series in accordance with the terms
of this Agreement (including any Supplement) and the Notes of such
Series or (b) pursuant to a written offer to purchase any
outstanding Notes of any Series made by the Company or an Affiliate
pro rata to the holders of the Notes of such Series upon the same
terms and conditions (except that if such Series has more than one
separate tranche, such written offer shall be allocated among all
of the separate tranches of such Series at the time outstanding in
proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof but such written offer may otherwise
differ among such separate tranches and such written offer shall be
made pro rata to the holders of the same tranches of such Series
upon the same terms and conditions). Any such offer shall provide
each holder of the Notes of the Series being offered for purchase
with sufficient information to enable it to make an informed
decision with respect to such offer and shall remain open for at
least 10 Business Days. If the holders of more than 50% of the
outstanding principal amount of the Notes of the Series being
offered for purchase accept such offer, the Company shall promptly
notify the remaining holders of such Series of such fact and the
expiration date for the acceptance by such holders of such offer
shall be extended by the number of days necessary to give each such
remaining holder at least 5 Business Days from its receipt of
such notice to accept such offer. 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.
Section
8.6 Offer to Prepay Upon Sale of
Assets.
(a) Notice and Offer
. In the event of a sale, lease or other disposition of a
"substantial part" of the assets of the Company or any Restricted
Subsidiary where the Company has elected to apply the net proceeds
of such sale, lease or other disposition pursuant to
Section 10.5(b), the Company shall, no later than the 305
th day following the date of such sale, lease or other
disposition, give written notice of such event (a " Sale of
Assets Prepayment Event ") to each holder of Notes. Such notice
shall contain, and shall constitute, an irrevocable offer to prepay
a Ratable Portion of the Notes held by such holder on the date
specified in such notice (the " Sale of Assets Prepayment
Date ") which date shall be not less than 30 days and not more
than 60 days after such notice.
(b) Acceptance and Payment. A holder of
Notes may accept or reject the offer to prepay pursuant to this
Section 8.6 by causing a notice of such acceptance or rejection to
be delivered to the Company at least 10 days prior to the Sale of
Assets Prepayment Date. A failure by a holder of the Notes to
respond to an offer to prepay made pursuant to this Section 8.6
shall be deemed to constitute a rejection of such offer by such
holder. If so accepted, such offered prepayment in respect of the
Ratable Portion of the Notes of
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each holder that has accepted such offer shall be due and
payable on the Sale of Assets Prepayment Date. Such offered
prepayment shall be made at 100% of the aggregate Ratable Portion
of the Notes of each holder that has accepted such offer, together
with interest on that portion of the Notes then being prepaid
accrued to the Sale of Assets Prepayment Date and, if applicable,
the Breakage Amount, if any, with respect to the principal being
prepaid but, in any case, without any Make-Whole Amount or
Prepayment Premium.
(c) Officer's
Certificate. Each offer to prepay the Notes pursuant to this
Section 8.6 shall be accompanied by a certificate, executed by a
Senior Financial Officer of the Company and dated the date of such
offer, specifying: (1) the Sale of Assets Prepayment Date; (2) that
such offer is being made pursuant to this Section 8.6 and that the
failure by a holder to res
