CURTISS-WRIGHT
CORPORATION
CURTISS-WRIGHT CONTROLS,
INC.
METAL IMPROVEMENT COMPANY,
LLC
CURTISS-WRIGHT FLOW CONTROL
CORPORATION
CURTISS-WRIGHT FLOW CONTROL
SERVICE CORPORATION
$150,000,000
5.51% Series C Senior Guaranteed Notes due
December 1, 2017
_______________
NOTE PURCHASE
AGREEMENT
_______________
Dated as of December 1,
2005
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1.
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AUTHORIZATION OF
NOTES
1
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2.
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SALE AND PURCHASE OF
NOTES
2
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4.
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CONDITIONS TO
CLOSING
2
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4.1.
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Representations and
Warranties
2
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4.2.
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Performance; No
Default
2
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4.3.
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Compliance
Certificates
3
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4.4.
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Opinions of
Counsel
3
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4.5.
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Purchase Permitted By Applicable Law,
etc
4
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4.6.
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Sale of Other
Notes
4
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4.7.
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Payment of Special Counsel
Fees
4
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4.8.
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Private Placement
Number
4
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4.9.
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Changes in Corporate
Structure
4
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4.10.
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Subsidiary
Guarantee
5
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4.12.
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Proceedings and
Documents
5
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5.
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REPRESENTATIONS AND WARRANTIES OF THE
ISSUERS 5
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5.1.
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Organization; Power and
Authority
5
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5.2.
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Authorization,
etc
5
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5.4.
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Organization and Ownership of Shares of
Subsidiaries 6
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5.5.
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Financial
Statements
7
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5.6.
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Compliance with Laws, Other Instruments,
etc
7
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5.7.
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Governmental Authorizations,
etc
8
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5.8.
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Litigation; Observance of Statutes and
Orders
8
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5.10.
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Title to Property;
Leases
9
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5.11.
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Licenses, Permits,
etc
9
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5.12.
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Compliance with
ERISA
9
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5.13.
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Private Offering by the
Issuers
10
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5.14.
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Use of Proceeds; Margin
Regulations
11
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5.16.
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Foreign Assets Control Regulations,
etc
11
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5.17.
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Status under Certain
Statutes
12
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5.18.
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Pari Passu
Ranking
12
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6.
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REPRESENTATIONS OF THE
PURCHASERs
12
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6.1.
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Purchase for
Investment
12
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7.
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INFORMATION AS TO
COMPANY
15
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7.1.
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Financial and Business
Information
15
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7.2.
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Officer’s
Certificate
18
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8.
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PREPAYMENT OF THE
NOTES
19
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8.1.
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Required
Prepayments
19
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8.2.
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Optional Prepayments with Make-Whole
Amount
19
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8.3.
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Prepayment of Notes Upon Change in
Control
19
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8.4.
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Offer to Prepay upon the Sale of Certain
Assets
21
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8.5.
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Allocation of Partial
Prepayments
22
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8.6.
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Maturity; Surrender,
etc
22
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8.7.
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Purchase of
Notes
23
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8.8.
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Make-Whole Amount; Modified Make-Whole
Amount 23
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9.
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AFFIRMATIVE
COVENANTS
25
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9.1.
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Compliance with
Law
25
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9.3.
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Maintenance of
Properties
25
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9.5.
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Corporate Existence,
etc
26
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9.6.
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Additional Subsidiary
Guarantors
27
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10.
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NEGATIVE
COVENANTS
27
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10.1.
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Transactions with
Affiliates
27
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10.2.
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Mergers and
Consolidations
27
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10.4.
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Limitation on Consolidated
Debt
29
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10.5.
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Limitation on Priority
Debt
29
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10.6.
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Minimum Consolidated Net
Worth
29
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10.7.
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Limitation on
Liens
29
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10.8.
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Nature of
Business
31
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10.9.
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Material
Subsidiaries
31
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12.
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REMEDIES ON DEFAULT,
ETC
34
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12.4.
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No Waivers or Election of Remedies, Expenses,
etc 35
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13.
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REGISTRATION; EXCHANGE; SUBSTITUTION OF
NOTES 36
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13.1.
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Registration of
Notes
36
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13.2.
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Transfer and Exchange of
Notes
36
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13.3.
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Replacement of
Notes
37
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14.1.
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Place of
Payment
37
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14.2.
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Home Office
Payment
37
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15.1.
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Transaction
Expenses
38
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16.
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SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
ENTIRE
AGREEMENT
39
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17.
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AMENDMENT AND
WAIVER
39
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17.2.
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Solicitation of Holders of
Notes
39
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17.3.
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Binding Effect,
etc
40
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17.4.
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Notes held by the Issuers,
etc
40
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19.
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REPRODUCTION OF
DOCUMENTS
41
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20.
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CONFIDENTIAL
INFORMATION
42
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21.
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SUBSTITUTION OF
PURCHASER
43
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22.1.
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Successors and
Assigns
43
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22.2.
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Payments Due on Non-Business
Days
44
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SCHEDULES AND
EXHIBITS
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SCHEDULE A
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--
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Information Relating to
Purchasers
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SCHEDULE B
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--
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Defined Terms
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SCHEDULE 3
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--
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Payment Instructions at
Closing
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SCHEDULE 4.9
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--
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Changes in Corporate
Structure
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SCHEDULE 5.3
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--
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Disclosure Materials
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SCHEDULE 5.4
--Subsidiaries of the Company;
Ownership of Subsidiary Stock
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SCHEDULE 5.5
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--
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Financial Statements
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SCHEDULE 5.8
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--
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Certain Litigation
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SCHEDULE 5.10
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--
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Title to Property
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SCHEDULE 5.11
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--
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Licenses, Permits, Etc.
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SCHEDULE 5.12
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--
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ERISA Affiliates, Employee Benefit
Plans
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SCHEDULE 5.15
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--
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Existing Debt
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EXHIBIT 1
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-- Form
of 5.51% Series C Senior Guaranteed Note due December 1,
2017
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EXHIBIT 4.4(a)
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-- Form
of Opinion of Special Counsel for the Issuers and the Subsidiary
Guarantors
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EXHIBIT 4.4(b)
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--
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Form of Opinion of Associate General
Counsel to the
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Issuers and Subsidiary
Guarantors
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EXHIBIT 4.4(c)
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--
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Form of Opinion of Special Counsel
for the Purchasers
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EXHIBIT 4.10
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--
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Form of Subsidiary
Guarantee
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CURTISS-WRIGHT
CORPORATION
CURTISS-WRIGHT CONTROLS,
INC.
METAL IMPROVEMENT COMPANY,
LLC
CURTISS-WRIGHT FLOW CONTROL
CORPORATION
CURTISS-WRIGHT FLOW CONTROL
SERVICE CORPORATION
4 Becker Farm Road
Roseland, New Jersey
07068
5.51% Series C Senior Guaranteed
Notes due December 1, 2017
December 1, 2005
To Each Of The Purchasers Listed
In
The Attached Schedule A (the “
Purchasers ”):
Ladies and Gentlemen:
CURTISS-WRIGHT
CORPORATION , a Delaware
corporation (together with its successors and assigns, the “
Company ”), CURTISS-WRIGHT CONTROLS, INC ., a
Delaware corporation (together with its successors and assigns,
“ C-W Controls ”), METAL IMPROVEMENT COMPANY,
LLC , a Delaware limited liability company (together with its
successors and assigns, “ Metal ”),
CURTISS-WRIGHT FLOW CONTROL CORPORATION , a New York
corporation (together with its successors and assigns, “
C-W Flow ”) and CURTISS-WRIGHT FLOW CONTROL SERVICE
CORPORATION , a Delaware corporation (together with its
successors and assigns, “ C-W Flow Control Service
” and together with the Company, C-W Controls, Metal and C-W
Flow, individually, an “Issuer” and collectively, the
“ Issuers ”), hereby jointly and severally agree
with the Purchasers as follows:
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1.
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AUTHORIZATION OF NOTES.
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The Issuers will authorize the joint
and several issuance and sale of $150,000,000 aggregate principal
amount of their joint and several 5.51% Series C Senior Guaranteed
Notes due December 1, 2017 (including any amendments, restatements
or modifications from time to time, the “ Notes
”, such term to include any such notes issued in substitution
therefor pursuant to Section 13 of this Agreement). The Notes shall
be substantially in the form set out in Exhibit 1, with such
changes thereto, if any, as may be approved by the Purchasers and
the Issuers. Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a “Schedule” or an
“Exhibit” are, unless otherwise specified, to a
Schedule or an Exhibit attached to this Agreement.
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2.
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SALE AND PURCHASE OF NOTES.
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Subject to the terms and conditions
of this Agreement, the Issuers will issue and sell to each
Purchaser and each Purchaser will purchase from the Issuers, at the
Closing provided for in Section 3, Notes 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
Purchasers’ obligations hereunder are several and not joint
obligations and no Purchaser shall have any liability to any Person
for the performance or non-performance by any other Purchaser
hereunder.
The sale and purchase of the Notes
to be purchased by each of the Purchasers shall occur at the
offices of Bingham McCutchen LLP, 399 Park Avenue, New York, NY
10022, at 10:00 a.m., local time, at a closing (the “
Closing ”) on December 1, 2005 or on such other
Business Day thereafter on or prior to December 30, 2005 as may be
agreed upon by the Issuers and the Purchasers. At the Closing the
Issuers will deliver to each Purchaser the Notes to be purchased by
such Purchaser in the form of a single Note (or such greater number
of Notes in denominations of at least $250,000 as such Purchaser
may request) dated the date of the Closing and registered in such
Purchaser’s name (or in the name of its nominee), against
delivery by such Purchaser to the Issuers or their order of
immediately available funds in the amount of the purchase price
therefor as directed by the Issuers in Schedule 3. If at the
Closing the Issuers shall fail to tender such 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
each Purchaser’s satisfaction, such Purchaser shall, at its
election, be relieved of all further obligations under this
Agreement, without thereby waiving any rights each such Purchaser
may have by reason of such failure or such
nonfulfillment.
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4.
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CONDITIONS TO CLOSING.
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Each Purchaser’s obligation to
purchase and pay for the Notes to be sold to it at the Closing is
subject to the fulfillment to each such Purchaser’s
satisfaction, prior to or at the Closing, of the following
conditions:
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4.1.
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Representations and
Warranties .
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The representations and warranties
of the Issuers in this Agreement shall be correct when made and at
the time of the Closing.
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4.2.
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Performance; No
Default .
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Each Issuer shall have performed and
complied with all agreements and conditions contained in this
Agreement required to be performed or complied
with by it prior to or at the
Closing and after giving effect to the issue and sale of the Notes
(and the application of the proceeds thereof as contemplated by
Section 5.14) no Default or Event of Default shall have occurred
and be continuing.
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4.3.
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Compliance
Certificates .
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(a)
Issuers’ Officer’s
Certificate . Each of the
Issuers shall have delivered to each Purchaser an Officer’s
Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been
fulfilled.
(b)
Subsidiary Guarantors’
Officer’s Certificate . Each of the Subsidiary Guarantors shall have
delivered to each Purchaser an Officer’s Certificate, dated
the date of the Closing, certifying that (i) the representations
and warranties contained in the Subsidiary Guarantee are true on
and as of the Closing with the same effect as if made on that date
and (ii) that such Subsidiary Guarantor has performed and complied
with all agreements and conditions contained in the Subsidiary
Guarantee required to be performed or complied with by such
Subsidiary Guarantor prior to or at the Closing.
(c)
Issuer’s Secretary’s
Certificates . Each of
the Issuers shall have delivered to each Purchaser a certificate
certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and
delivery of the Notes and this Agreement.
(d)
Subsidiary Guarantors’
Secretary’s Certificate . Each of the Subsidiary Guarantors shall have
delivered to each Purchaser a certificate certifying as to the
resolutions attached thereto and other corporate proceedings
relating to the authorization, execution and delivery of the
Subsidiary Guarantee by such Subsidiary Guarantor.
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4.4.
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Opinions of Counsel
.
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Each Purchaser shall have received
opinions in form and substance satisfactory to it, dated the date
of the Closing (a) from Satterlee Stephens Burke & Burke LLP,
special counsel for the Issuers and Subsidiary Guarantors,
substantially in the form set forth in Exhibit 4.4(a) and covering
such other matters incident to such transactions as the Purchasers
or their counsel may reasonably request (and the Issuers hereby
instruct such counsel to deliver such opinion to each Purchaser),
(b) from the Associate General Counsel for the Issuers and
Subsidiary Guarantors substantially in the form set forth in
Exhibit 4.4(b) and covering such other matters incident to such
transactions as the Purchasers or their counsel may reasonably
request and (c) from Bingham McCutchen LLP, the Purchasers’
special counsel in connection with such transactions, substantially
in the form set forth in Exhibit 4.4(c) and
covering such other matters incident
to such transactions as the Purchasers may reasonably
request.
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4.5.
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Purchase Permitted By Applicable
Law, etc .
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On the date of the Closing each
Purchaser’s purchase of Notes shall ( i ) be permitted
by the laws and regulations of each jurisdiction to which it is
subject, without recourse to provisions (such as Section 1405(a)(8)
of the New York Insurance Law) permitting limited investments by
insurance companies without restriction as to the character of the
particular investment, ( ii ) not violate any applicable law
or regulation (including, without limitation, Regulation T, U or X
of the Board of Governors of the Federal Reserve System) and (
iii ) not subject such Purchaser to any tax, penalty or
liability under or pursuant to any applicable law or regulation,
which law or regulation was not in effect on the date hereof. If so
requested, each Purchaser shall have received Officer’s
Certificates from each Issuer and each Subsidiary Guarantor
certifying as to such matters of fact as it may reasonably specify
to enable such Purchaser to determine whether such purchase is so
permitted.
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4.6.
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Sale of Other Notes
.
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Contemporaneously with the Closing,
the Issuers shall sell to each Purchaser and each Purchaser shall
purchase the Notes to be purchased by it at the Closing as
specified in Schedule A.
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4.7.
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Payment of Special Counsel
Fees .
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Without limiting the provisions of
Section 15.1, the Issuers shall have paid on or before the Closing
the reasonable fees, charges and disbursements of the
Purchasers’ special counsel referred to in Section 4.4(c) to
the extent reflected in a statement of such counsel rendered to the
Issuers at least one Business Day prior to the Closing.
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4.8.
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Private Placement
Number .
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A Private Placement Number issued by
Standard & Poor’s CUSIP Service Bureau (in cooperation
with the Securities Valuation Office of the National Association of
Insurance Commissioners) shall have been obtained for the
Notes.
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4.9.
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Changes in Corporate
Structure .
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Except as specified in Schedule 4.9,
no Obligor shall have changed its jurisdiction of incorporation or
organization or been a party to any merger or consolidation and
shall not have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of
the most recent financial statements referred to in Schedule
5.5.
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4.10.
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Subsidiary Guarantee
.
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Each Subsidiary Guarantor shall have
executed and delivered to the Purchasers a guarantee agreement (as
may be amended, restated or modified from time to time, the
“Subsidiary Guarantee”), in the form of Exhibit
4.10.
Each of J.P. Morgan Securities Inc.
and SunTrust Capital Markets, Inc. shall have delivered to each
Issuer, their counsel, each of the Purchasers and the
Purchasers’ special counsel an offeree letter, each in form
and substance satisfactory to each Purchaser and the Issuers,
confirming the manner of the offering of the Notes by J.P. Morgan
Securities Inc. and SunTrust Capital Markets, Inc..
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4.12.
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Proceedings and
Documents .
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All corporate and other proceedings
in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions
shall be satisfactory to each Purchaser and its special counsel,
and each Purchaser and its special counsel shall have received all
such counterpart originals or certified or other copies of such
documents as such Purchaser or its counsel may reasonably
request.
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5.
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REPRESENTATIONS AND WARRANTIES OF THE
ISSUERS
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Each of the Issuers jointly and
severally represents and warrants to each Purchaser
that:
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5.1.
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Organization; Power and
Authority .
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The Company is a corporation duly
organized, validly existing and in good standing under the laws of
Delaware, 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 the Financing
Documents to which it is a party and to perform the provisions
hereof and thereof.
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5.2.
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Authorization, etc
.
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(a)
This Agreement and the Notes have
been duly authorized by all necessary corporate or limited
liability company, as applicable, action on the
part of each Issuer, and this
Agreement constitutes, and upon execution and delivery thereof each
Note will constitute, a legal, valid and binding obligation of each
Issuer enforceable against such Issuer in accordance with its
terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors’
rights generally and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law).
(b)
The Subsidiary Guarantee has been
duly authorized by all necessary corporate action on the part of
each Subsidiary Guarantor, and the Subsidiary Guarantee constitutes
a legal, valid and binding obligation of each Subsidiary Guarantor
enforceable against each Subsidiary Guarantor in accordance with
its terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors’
rights generally and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law).
The Company, through its agents,
J.P. Morgan Securities Inc. and SunTrust Capital Markets, Inc., has
delivered to each Purchaser a copy of a Private Placement
Memorandum, dated November, 2005 (the “ Memorandum
”), relating to the transactions contemplated hereby. Except
as disclosed in Schedule 5.3, this Agreement, the Memorandum, the
documents, certificates or other writings identified in Schedule
5.3 and the financial statements listed in Schedule 5.5, taken as a
whole, do not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in light of the circumstances under which they were made
not misleading. Except as disclosed in the Memorandum or as
expressly described in Schedule 5.3, or in one of the documents,
certificates or other writings identified therein, or in the
financial statements listed in Schedule 5.5, since December 31,
2004, there has been no change in the financial condition,
operations, business or properties of the Company or any of its
Subsidiaries except changes that individually or in the aggregate
would not reasonably be expected to have a Material Adverse
Effect.
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5.4.
|
Organization and Ownership of
Shares of Subsidiaries .
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(a)
Schedule 5.4 is (except as noted
therein) a complete and correct list of the Company’s
Subsidiaries, showing, as to each Subsidiary, the correct name
thereof, the jurisdiction of its organization, and the percentage
of shares of each class of its capital stock or similar equity
interests outstanding owned by 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).
(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, to transact the business it transacts and proposes to
transact, and to execute and deliver the Financing Documents to
which it is a party, and to perform the provisions hereof and
thereof.
(d)
No Subsidiary is a party or
otherwise subject to any legal restriction or any agreement (other
than this Agreement, the agreements listed on Schedule 5.4 and
customary limitations imposed by corporate law statutes)
restricting the ability of such Subsidiary to pay dividends out of
profits or make any other similar distributions of profits to any
Obligor or any of such Obligor’s Subsidiaries that owns
outstanding shares of capital stock or similar equity interests of
such Subsidiary.
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5.5.
|
Financial Statements
.
|
The Company has delivered to each
Purchaser copies of the financial statements of the Company and its
Subsidiaries listed on Schedule 5.5. All of said financial
statements (including in each case the related schedules and notes)
fairly present in all material respects the consolidated financial
position of 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).
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5.6.
|
Compliance with Laws, Other
Instruments, etc .
|
The execution, delivery and
performance by each of the Issuers and each Subsidiary Guarantor,
as the case may be, of this Agreement, the Notes and the Subsidiary
Guarantee 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,
operating agreement 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.
|
5.7.
|
Governmental Authorizations,
etc .
|
No consent, approval or
authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the
execution, delivery or performance by (a) the Issuers of this
Agreement or the Notes and (b) each Subsidiary Guarantor of the
Subsidiary Guarantee, except that the Issuers may, at their option,
file a notice on Form D with the Securities and Exchange
Commission.
|
5.8.
|
Litigation; Observance of
Statutes and Orders .
|
(a)
Except as disclosed in Schedule 5.8,
there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the
Company or any Subsidiary or any property of the Company or any
Subsidiary in any court or before any arbitrator of any kind or
before or by any Governmental Authority that, individually or in
the aggregate, would reasonably be expected to have a Material
Adverse Effect.
(b)
Neither the Company nor any
Subsidiary is in default under 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.
The Issuers and their 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
affected Issuer or Subsidiary, as the case may be, has
established adequate reserves in
accordance with GAAP. The Federal income tax liabilities of the
Issuers and their Subsidiaries which have filed a Federal income
tax return or were included in a consolidated Federal income tax
return have been determined by the Internal Revenue Service and
paid for all fiscal years up to and including the fiscal year ended
December 31, 2001.
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5.10.
|
Title to Property;
Leases .
|
Except as disclosed on Schedule
5.10, each of the Issuers and their 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 any of the Issuers or any Subsidiary after said date (except as
sold or otherwise disposed of in the ordinary course of business),
in each case free and clear of Liens prohibited by this Agreement.
All Material leases are valid and subsisting and are in full force
and effect in all material respects.
|
5.11.
|
Licenses, Permits, etc
.
|
Except as disclosed in Schedule
5.11, each of the Issuers and their Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto, that
are Material, and, to the knowledge of the Issuers, none of such
licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights with respect
thereto conflict with the rights of others, except for those
conflicts that, individually or in the aggregate, would not have a
Material Adverse Effect.
|
5.12.
|
Compliance with ERISA
.
|
(a)
Each Issuer and each ERISA Affiliate
have operated and administered each Plan in compliance with all
applicable laws except for such instances of noncompliance as have
not resulted in and could not reasonably be expected to result in a
Material Adverse Effect. None of the Issuers 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 any of the Issuers or any ERISA Affiliate, or in
the imposition of any Lien on any of the rights, properties or
assets of any of the Issuers 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 section 412 of the Code,
other than such liabilities or Liens as would not be individually
or in the aggregate Material.
(b)
The present value of the aggregate
benefit liabilities under each of the Plans (other than
Multiemployer Plans), determined as of the end of such
Plan’s most recently ended
plan year on the basis of the actuarial assumptions specified for
funding purposes in such Plan’s most recent actuarial
valuation report, did not exceed the aggregate current value of the
assets of such Plan allocable to such benefit liabilities by more
than $40,000,000 in the aggregate for all such Plans. The term
“ benefit liabilities ” has the meaning
specified in section 4001 of ERISA and the terms “ current
value ” and “ present value ” have the
meaning specified in section 3 of ERISA.
(c)
None of the Issuers or their ERISA
Affiliates has incurred withdrawal liabilities (and none is subject
to contingent withdrawal liabilities) under section 4201 or 4204 of
ERISA in respect of Multiemployer Plans that individually or in the
aggregate are Material.
(d)
The expected postretirement benefit
obligation (determined as of the last day of 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 Notes hereunder will not
involve any transaction that is subject to the prohibitions of
section 406 of ERISA or in connection with which a tax could be
imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The
representation by the Issuers in the first sentence of this Section
5.12(e) is made in reliance upon and subject to the accuracy of the
Purchasers’ representation in Section 6.2 as to the sources
of the funds to be used to pay the purchase price of the Notes to
be purchased by such Purchaser.
(f)
Schedule 5.12 sets forth all ERISA
Affiliates and all “employee benefit plans” maintained
by the Issuers (or any “affiliate” thereof) or in
respect of which the Notes could constitute an “employer
security” (“ employee benefit plan ” has
the meaning specified in section 3 of ERISA, “
affiliate ” has the meaning specified in section
407(d) of ERISA and section V of the Department of Labor Prohibited
Transaction Exemption 95-60 (60 FR 35925, July 12, 1995) and
“ employer security ” has the meaning specified
in section 407(d) of ERISA).
|
5.13.
|
Private Offering by the
Issuers .
|
None of the Issuers nor anyone
acting on behalf of any of them has offered the Notes or any
similar securities for sale to, or solicited any offer to buy any
of the same from, or otherwise approached or negotiated in respect
thereof with, any Person other than the Purchasers and not more
than 55 other Institutional Investors (as defined in clause (c) of
the definition of such term), each of which has been offered the
Notes at a private sale for investment. None of the Issuers nor
anyone acting on behalf of any of them has taken, or
will
take, any action that would subject
the issuance or sale of the Notes to the registration requirements
of Section 5 of the Securities Act. The representations and
warranties of the Issuers in the second sentence of this Section
5.13 are made in reliance upon and subject to the accuracy and
completeness of the Purchasers’ representations and
warranties set forth in Section 6.1 hereof.
|
5.14.
|
Use of Proceeds; Margin
Regulations .
|
The Issuers will apply the proceeds
of the sale of the Notes for general corporate purposes of the
Issuers and their Subsidiaries, including repaying existing
indebtedness of the Issuers and their Subsidiaries. No part of the
proceeds from the sale of the Notes hereunder will be used,
directly or indirectly, for the purpose of buying or carrying any
margin stock within the meaning of Regulation 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 any Issuer 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 1% of the value of the
consolidated assets of the Issuers and their Subsidiaries and the
Issuers do not have any present intention that margin stock will
constitute more than 1% 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.
Except as described therein,
Schedule 5.15 sets forth a complete and correct list of each issue
of Debt of the Issuers and their Subsidiaries the outstanding
principal amount of which exceeds $1,000,000 as of November 17,
2005, since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or
maturities of such Debt of the Issuers or their Subsidiaries. The
aggregate amount of all outstanding Debt of the Issuers and their
Subsidiaries not set forth in Schedule 5.15 does not exceed
$10,000,000. None of the Issuers nor any Subsidiary is in default
and no waiver of default is currently in effect, in the payment of
any principal or interest on any Debt of such Issuer or such
Subsidiary and no event or condition exists with respect to any
Debt of any such Issuer or such Subsidiary the outstanding
principal amount of which exceeds $1,000,000 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.
|
5.16.
|
Foreign Assets Control
Regulations, etc .
|
(a)
Neither the sale of the Notes by the
Issuers hereunder nor their 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 (i) is 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 (ii) engages 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 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.
|
5.17.
|
Status under Certain
Statutes .
|
No Issuer nor any Subsidiary is
subject to regulation under the Investment Company Act of 1940, as
amended, the Public Utility Holding Company Act of 1935, as amended
or the Federal Power Act, as amended.
|
5.18.
|
Pari Passu Ranking
.
|
The Obligors’ obligations
under the Financing Documents to which they are a party will, upon
issuance of the Notes, rank at least pari passu, without preference
or priority, with all of their respective other outstanding
unsecured and unsubordinated obligations, except for those
obligations that are mandatorily afforded priority by operation of
law.
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6.
|
REPRESENTATIONS OF THE
PURCHASERS.
|
|
6.1.
|
Purchase for
Investment .
|
Each Purchaser represents that it
(i) is an “accredited investor” as defined in Rule 501
(a)(1), (2), (3) or (7) of Regulation D under the Securities Act;
(ii) has received and reviewed the Memorandum and the Exhibits
thereto; (iii) has relied upon the Memorandum and the
representations and warranties of the Issuers set forth herein in
making a decision to purchase the Notes and has a full
understanding and appreciation of the risks inherent in such an
investment, (iv) together with its attorneys, accountants and
other representatives and advisers, if any (x) has been given an
opportunity to ask,
and has to the extent such Purchaser
considered necessary, asked questions of, and has received answers
from, officers of the Issuers concerning the terms of the offering
of Notes and the affairs of the Issuers and their proposed
activities and (y) has been given or afforded access to all
documents, records, books and additional information which such
Purchaser has requested regarding such matters (provided that it is
understood that no information obtained by any Purchaser in any
manner indicated in this clause (iv) in any way limits the scope
and substance of the representations and warranties made by the
Issuers set forth in this Agreement upon which each Purchaser may
rely in full regardless of any such information) and (v) is
purchasing the Notes for its own account or for one or more
separate accounts maintained by such Purchaser or for the account
of one or more pension or trust funds over which such Purchaser has
investment discretion and not with a view to the distribution
thereof (except for any transfer of the Notes effected pursuant to
an applicable exemption from the registration requirements of the
Securities Act), provided that the disposition of it or its
property shall at all times be within its or their control. Each
Purchaser understands that the Notes have not been registered under
the Securities Act and may be resold only if registered pursuant to
the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither
such registration nor such an exemption is required by law, and
that the Issuers are not required to register the Notes.
Each Purchaser 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 Notes to be
purchased by such Purchaser hereunder:
(a)
the Source is an “insurance
company general account,” as such term is defined in the
Department of Labor Prohibited Transaction Class Exemption (“
PTE ”) 95-60 (issued July 12, 1995), and there is no
plan with respect to which the aggregate amount of such general
account’s reserves and liabilities for the contracts held by
or on behalf of such plan and all other plans maintained by the
same employer (and affiliates thereof as defined in section V(a)(1)
of PTE 95-60) or by the same employee organization (in each case
determined in accordance with PTE 95-60) exceeds 10% of the total
of all reserves and liabilities of such general account (determined
in accordance with PTE 95-60, exclusive of separate account
liabilities), plus any applicable surplus as of the date of the
Closing; 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 employee benefit
plan (including any annuitant)) are not affected in any manner by
the investment performance of the separate account; or
(c)
the Source is either (i) an
insurance company pooled separate account, within the meaning of
PTE 90-1 (issued January 29, 1990), or (ii) a bank collective
investment fund, within the meaning of the PTE 91-38 (issued July
12, 1991) and, except as disclosed by such Purchaser to the Issuers
in writing pursuant to this paragraph (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 the
QPAM Exemption) managed by a “qualified professional asset
manager” or “QPAM” (within the meaning of part V
of the QPAM Exemption), no employee benefit plan’s assets
that are included in such investment fund, when combined with the
assets of all other employee benefit plans established or
maintained by the same employer or by an affiliate (within the
meaning of section V(c)(1) of the QPAM Exemption) of such
employer or by the same employee organization and managed by such
QPAM, exceed 20% of the total client assets managed by such QPAM,
the conditions of part I(c) and (g) of the QPAM Exemption are
satisfied, neither the QPAM nor a person controlling or controlled
by the QPAM (applying the definition of “control” in
section V(e) of the QPAM Exemption) owns a 5% or more interest in
any of the Issuers and (i) the identity of such QPAM and
(ii) the names of all employee benefit plans whose assets are
included in such investment fund have been disclosed to such Issuer
in writing pursuant to this paragraph (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 any of
the Issuers and (i) the identity of such INHAM and (ii) the name(s)
of the employee benefit plan(s) whose assets constitute the Source
have been disclosed to such Issuer in writing pursuant to this
paragraph (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 Issuers in writing pursuant to this paragraph (g);
or
(h)
the Source does not include assets
of any employee benefit plan, other than a plan exempt from the
coverage of ERISA.
If any Purchaser or any subsequent
transferee of the Notes notifies any of the Issuers in writing that
such Purchaser or such transferee is relying on any representation
contained in paragraphs (c), (d), (e), or (g) above, such Issuer
shall deliver on the date of Closing and on the date of any
applicable transfer, a certificate, which shall either state that
(i) it is neither a “party in interest” (as defined in
Title I, section 3(14) of ERISA) nor a “disqualified
person” (as defined in section 4975(e)(2) of the Code), with
respect to any plan identified pursuant to paragraphs (c), (e) or
(g) above, or (ii) with respect to any plan identified pursuant to
paragraph (d) above, neither it nor any “affiliate” (as
defined in section V(c) of the QPAM Exemption) has at such time,
and during the immediately preceding one year, exercised the
authority to appoint or terminate said QPAM as manager of any plan
identified in writing pursuant to paragraph (d) above or to
negotiate the terms of said QPAM’s management agreement on
behalf of any such identified plan. As used in this Section 6.2,
the terms “employee benefit plan” and “separate
account” shall have the respective meanings assigned to such
terms in section 3 of ERISA. Each of the representations of the
Purchasers made in this Section 6.2 are also for the benefit of the
Subsidiary Guarantors.
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7.
|
INFORMATION AS TO COMPANY.
|
|
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), duplicate copies of,
(i)
a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such quarter,
and
(ii)
consolidated statements of income
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 (together with the footnotes thereto), in all material
respects, the consolidated financial position of the companies
being reported on
and their consolidated 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 Securities and Exchange Commission
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, duplicate copies of,
(i)
a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such year,
and
(ii)
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 (together with the footnotes
thereto) present fairly, in all material respects, the consolidated
financial position of the companies being reported upon and their
consolidated 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 prepared in accordance with the
requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this
Section 7.1(b);
(c)
SEC and Other Reports
-- promptly upon their becoming
available, one copy of (i) each financial statement, report
(including without limitation, the Company’s annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) notice or proxy statement sent by the Company or any
Subsidiary to public securities holders generally, and (ii) each
regular or periodic report, each registration statement that shall
have become effective (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
Securities and Exchange Commission; provided that to the extent
information in paragraph (a) through (c) is filed with the
Securities and
Exchange Commission, in electronic
form, the Company will promptly provide the information
electronically to the holders of the Notes at such time;
(d)
Notice of Default or Event of
Default -- promptly, and
in any event within five Business Days after a Responsible Officer
having knowledge of the existence of any Default or Event of
Default, a written notice specifying the nature and period of
existence thereof and what action an Issuer or Subsidiary Guarantor
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 has knowledge of any
of the following, a written notice setting forth the nature thereof
and the action, if any, that an Issuer, a Subsidiary 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 by any Issuer, a Subsidiary 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 an Issuer,
a Subsidiary 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 any Issuer, any
Subsidiary 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, would reasonably be expected to have a
Material Adverse Effect; and
(f)
Information Required by Rule
144A -- promptly, upon
the request of the holder of any Note, provide such holder, and any
qualified institutional buyer designated by such holder, such
financial and other information as such holder may reasonably
determine to be necessary in order to permit compliance with the
information requirements of Rule 144A under the Securities Act in
connection with the resale of Notes, except at such times as any
Issuer is subject to and in compliance with the reporting
requirements of section 13 or
15(d) of the Exchange Act. For the
purpose of this clause (f), the term " qualified institutional
buyer " shall have the meaning specified in Rule 144A under the
Securities Act;
(g)
Requested Information
-- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of any Obligor
or any of its Subsidiaries or relating to the ability of any
Obligor to perform its obligations under the Financing Documents to
which it is a party as from time to time may be reasonably
requested by any such holder of Notes.
|
7.2.
|
Officer’s
Certificate .
|
Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or
Section 7.1(b) shall be accompanied by a certificate of a Senior
Financial Officer setting forth:
(a)
Covenant Compliance
. -- the information (including
detailed calculations) required in order to establish whether the
Company was in compliance with the requirements of Sections 10.3
through 10.7, inclusive, and Section 10.9, during the quarterly or
annual period covered by the statements then being furnished
(including with respect to each such Section, where applicable, the
calculations of the maximum or minimum amount, ratio or percentage,
as the case may be, permissible under the terms of such Sections,
and the calculation of the amount, ratio or percentage then in
existence); and
(b)
Event of Default
. -- a statement that such officer
has reviewed the relevant terms hereof and has made, or caused to
be made, under his or her supervision, a review of the transactions
and conditions of the Company 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 (including, without limitation, any such event or condition
resulting from the failure of the Company or any Subsidiary to
comply with any Environmental Law), specifying the nature and
period of existence thereof and what action the Company shall have
taken or proposes to take with respect thereto.
The Issuers 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 applicable Issuer: (i) to visit the
principal executive office of such Issuer, to discuss
the
affairs, finances and accounts of
such Issuer and its Subsidiaries with such Issuer’s officers,
and (ii) with the consent of such Issuer (which consent will not be
unreasonably withheld) to visit the other offices and properties of
such Issuer and each of its Subsidiaries, 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 Issuers to visit and inspect any of
the offices or properties of any Issuer 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 each Issuer authorizes said accountants to discuss the
affairs, finances and accounts of the Issuers and their
Subsidiaries), all at such times and as often as may be
requested.
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8.
|
PREPAYMENT OF THE NOTES.
|
|
8.1.
|
Required Prepayments
.
|
The outstanding principal amount, if
any, of the Notes shall be repaid by the Issuers, at par and
without payment of the Make-Whole Amount or any premium, on
December 1, 2017.
|
8.2.
|
Optional Prepayments with
Make-Whole Amount .
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The Issuers may, at their option,
upon notice as provided below, prepay at any time all, or from time
to time any part of, the Notes (but if in part, in an amount not
less than $5,000,000 or such lesser amount as shall then be
outstanding), at 100% of the principal amount so prepaid, plus the
Make-Whole Amount determined for the prepayment date with respect
to such principal amount. The Issuers will give each holder of
Notes written notice of each optional prepayment 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, the aggregate principal amount of the Notes to be prepaid on
such date, the principal amount of each Note held by such holder to
be prepaid (determined in accordance with Section 8.5), and the
interest to be paid on the prepayment date with respect to such
principal amount being prepaid, and shall be accompanied by a
certificate of a Senior Financial Officer as to the estimated
Make-Whole Amount due in connection with such prepayment
(calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two
Business Days prior to such prepayment, the Issuers shall deliver
to each holder of Notes a certificate of a Senior Financial Officer
specifying the calculation of such Make-Whole Amount as of the
specified prepayment date.
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8.3.
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Prepayment of Notes Upon Change
in Control .
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(a)
Notice of Change in Control or
Control Event . The
Company will, within five Business Days after any Responsible
Officer has knowledge of the occurrence of any Change in Control or
Control Event, give written notice of such Change in Control or
Control Event to each holder of Notes. In the case that a Change in
Control has occurred, such notice shall contain and constitute an
offer to prepay Notes as described in subparagraph (b) of this
Section 8.3 and shall be accompanied by the certificate described
in subparagraph (e) of this Section 8.3.
(b)
Offer to Prepay Notes
. The offer to prepay Notes
contemplated by subparagraph (a) of this Section 8.3 shall be an
offer to prepay, in accordance with and subject to this Section
8.3, all, but not less than all, of the Notes held by each holder
(in this case only, “ holder ” in respect of any
Note registered in the name of a nominee for a disclosed beneficial
owner shall mean such beneficial owner) on a date specified in such
offer (the “ Change in Control Prepayment Date
”) that is not less than 45 days and not more than 60 days
after the date of such offer (if the Change in Control Prepayment
Date shall not be specified in such offer, the Change in Control
Prepayment Date shall be the 45th day after the date of such
offer).
(c)
Acceptance; Rejection
. A holder of Notes may accept the
offer to prepay made pursuant to this Section 8.3 by causing a
notice of such acceptance to be delivered to the Company not more
than 30 days after the date the written offer notice referred to in
subsection (a) of this Section 8.3 is given to the holders of the
Notes. A failure by a holder of Notes to respond to an offer to
prepay made pursuant to this Section 8.3 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 8.3 shall be at 100% of the
principal amount of such Notes, plus the Modified Make-Whole Amount
determined for the Change in Control Prepayment Date with respect
to such principal amount, together with interest on such Notes
accrued to the Change in Control Prepayment Date. Two Business Days
preceding the Change in Control Prepayment Date, the Company shall
deliver to each holder of Notes being prepaid a certificate of a
Senior Financial Officer showing the Modified Make-Whole Amount due
in connection with such prepayment and setting forth the details of
the computation of such amount. Each prepayment of Notes pursuant
to this Section 8.3 shall be made on the Change in Control
Prepayment Date.
(e)
Officer’s
Certificate . Each offer
to prepay the Notes pursuant to this Section 8.3 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 Change in Control Prepayment Date;
(ii) that such offer is made pursuant to this Section 8.3; (iii)
the principal amount of each Note offered to be prepaid; (iv) the
estimated Modified Make-Whole Amount, if any,
due in connection with such
prepayment (calculated as if the Change in Control Prepayment Date
were the date of such offer), setting forth the details of such
computation; (v) the interest that would be due on each Note
offered to be prepaid as of the Change in Control Prepayment Date;
(vi) that the conditions of this Section 8.3 have been fulfilled;
and (vii) in reasonable detail, the nature and date of the Change
in Control (including, if known, the name or names of the Person or
Persons acquiring control).
(f)
“ Change in Control”
Defined . A “ Change in Control ” shall
occur if any Person or group of Persons acting in concert, together
with Affiliates thereof, shall in the aggregate, directly or
indirectly, control or own (beneficially or otherwise) more than
50% of the issued and outstanding Voting Stock of the Company at
any time after the date of Closing or shall otherwise have the
ability to elect a majority of the members of the board of
directors of the Company.
(g)
“ Control Event”
Defined . “ Control Event ” means: (i) the
execution by the Company or any of its Subsidiaries or Affiliates
of any agreement or letter of intent with respect to any proposed
transaction or event or series of transactions or events which,
individually or in the aggregate, may reasonably be expected to
result in a Change in Control, or (ii) the execution of any written
agreement which, when fully performed by the parties thereto, would
result in a Change in Control.
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8.4.
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Offer to Prepay upon the Sale of
Certain Assets .
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(a)
Notice and Offer
. In the event of any Debt
Prepayment Application under Section 10.3, the Obligors will,
within ten (10) days of the occurrence of the Transfer (a “
Debt Prepayment Transfer ”) in respect of which an
offer to prepay the Notes is being made to comply with the
provisions for a Debt Prepayment Application (as set forth in the
definition thereof), 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 (the “ Transfer Prepayment 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 thirty (30) days and not
more than sixty (60) days after the date of such notice, together
with interest on the amount to be so prepaid accrued to the
Transfer Prepayment Date and the Make-Whole Amount. If the Transfer
Prepayment Date shall not be specified in such notice, the Transfer
Prepayment Date shall be the fortieth (40th) 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 twenty (20) days after
the date of such written
notice from the Obligors, provided,
that failure to accept such offer in writing within twenty (20)
days after the date of such written notice shall be deemed to
constitute an acceptance of the Prepayment Offer. If so accepted by
any holder of a Note, such offered prepayment (equal to not less
than 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 one hundred percent (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
and the Make-Whole Amount.
(c)
Officer’s
Certificate . Each offer
to prepay the Notes pursuant to this Section 8.4 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 8.4 and Section 10.3, (iv) the
principal amount of each Note offered to be prepaid, (v) the
interest that would be due on each Note offered to be prepaid,
accrued to the Transfer Prepayment Date, (vi) the estimated
Make-Whole Amount due in respect of each Note (calculated as if the
date of the notice containing the Transfer Prepayment Offer were
the date of prepayment), and (vi) in reasonable detail, the nature
of the Transfer 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.
(d)
Notice Concerning Status of
Holders of Notes .
Promptly after each Transfer Prepayment Date and the making of all
prepayments contemplated on such Transfer Prepayment Date under
this Section 8.4 (and, in any event, within thirty (30) days
thereafter), the Company shall deliver to each holder of Notes a
certificate signed by a Senior Financial Officer of the Company
containing a list of the then current holders of Notes (together
with their addresses) and setting forth as to each such
holde
