Exhibit 10.1
GLOBIX CORPORATION
$5,000,000
Senior Secured Notes due May 1, 2008
______________
NOTE PURCHASE AGREEMENT
______________
December 13, 2005
TABLE OF CONTENTS
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1.
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AUTHORIZATION
OF NOTES.
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1
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2.
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SALE AND
PURCHASE OF NOTES; TERMS OF NOTES; GUARANTY; GRANTING OF
LIENS.
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1
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2.1.
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Purchase and Sale of Notes; Terms of
Notes.
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1
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2.2.
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Subsidiary Guaranty and Security
Documents.
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2
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3.
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CLOSING.
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3
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4.
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CONDITIONS TO CLOSING.
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3
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4.1.
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Representations and Warranties.
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4
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4.2.
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Performance; No Default.
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4
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4.3.
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Certificates of Officers.
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4
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4.4.
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Sale of Notes.
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5
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4.5.
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Payment of Counsel Fees.
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5
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4.6.
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Changes in Corporate Structure.
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5
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4.7.
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Subsidiary Guaranty, Etc.
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5
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4.8.
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Proceedings and Documents.
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5
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5.
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REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
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5
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5.1.
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Organization; Power and Authority.
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5
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5.2.
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Authorization, etc.
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6
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5.3.
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Disclosure.
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6
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5.4.
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Organization and Ownership of Shares of
Subsidiaries; Affiliates.
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6
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5.5.
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Governmental Authorizations, etc.
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7
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5.6.
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Compliance with Laws, Other Instruments,
Etc.
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7
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5.7.
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Use of Proceeds; Margin Regulations.
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7
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5.8.
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Investment Company Act; Holding Company
Act.
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8
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5.9.
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Permitted Senior Secured Debt.
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8
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6.
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REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER.
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8
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6.1.
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Authorization.
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8
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6.2.
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Purchase Entirely for Own Account.
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8
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6.3.
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Disclosure of Information.
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8
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6.4.
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Accredited Investor.
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8
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6.5.
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Exempt from Registration; Restricted
Securities.
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9
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7.
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INFORMATION AS TO THE COMPANY.
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9
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7.1.
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Financial and Business Information.
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9
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8.
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PREPAYMENT OF THE NOTES.
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10
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8.1.
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No Required Prepayments.
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10
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8.2.
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Optional Prepayments.
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10
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8.3.
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Allocation Of Partial Prepayments.
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10
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8.4.
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Maturity; Surrender, etc.
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10
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9.
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COVENANTS.
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11
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9.1.
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Incorporation of Indenture Covenants.
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11
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9.2.
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Limitation on Indebtedness; Negative
Pledge.
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11
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9.3.
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Future Subsidiary Guarantors.
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12
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10.
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MERGER, CONSOLIDATION, ETC.
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12
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11.
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EVENTS OF DEFAULT.
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13
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11.1.
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Events of Default.
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13
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12.
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REMEDIES ON DEFAULT, ETC.
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13
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12.1.
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Acceleration.
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13
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12.2.
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Other Remedies.
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14
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12.3.
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Rescission.
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14
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12.4.
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No Waivers or Election of Remedies, Expenses,
etc.
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15
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13.
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RECORDATION; EXCHANGE; SUBSTITUTION OF
NOTES.
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15
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13.1.
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Recordation of Notes.
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15
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13.2.
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Transfer and Exchange of Notes.
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15
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13.3.
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Replacement of Notes.
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16
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13.4.
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Legend.
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16
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14.
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PAYMENTS ON NOTES.
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16
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14.1.
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Place of Payment.
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16
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14.2.
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Home Office Payment.
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17
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15.
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EXPENSES, ETC.
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17
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15.1.
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Transaction Expenses.
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17
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15.2.
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Survival.
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17
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16.
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SURVIVAL OF
REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
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18
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17.
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AMENDMENT AND WAIVER.
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18
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17.1.
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Requirements.
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18
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17.2.
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Solicitation of Holders of Notes.
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18
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17.3.
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Binding Effect, etc.
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19
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17.4.
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Notes Held by the Company, etc.
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19
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18.
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NOTICES.
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19
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19.
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CONFIDENTIAL INFORMATION.
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20
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20.
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SUBSTITUTION OF PURCHASER.
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20
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21.
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MISCELLANEOUS.
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21
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21.1.
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Successors and Assigns.
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21
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21.2.
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Payments Due on Non-Business Days.
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21
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21.3.
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Severability.
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21
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21.4.
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Construction.
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21
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21.5.
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Counterparts.
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21
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21.6.
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Governing Law.
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22
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21.7.
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Agent for Service of Process.
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22
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21.8.
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Administrative Agent.
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22
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Schedule
A
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-
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Purchasers
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Schedule B
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-
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Defined Terms
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Schedule 2.2(a)
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-
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Subsidiary Guarantors
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Schedule 4.6
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-
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Certain Changes
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Schedule 5.3
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-
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Disclosures; Financial Statements
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Schedule 5.4
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-
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Subsidiaries Particulars
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Exhibit 1
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-
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Form of Note
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Exhibit 2.2(a)
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-
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Form of Subsidiary Guaranty
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Exhibit 2.2(b)
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-
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Form of Security Agreement
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Exhibit
2.2(c)
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-
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Form of
Intercreditor Agreement
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GLOBIX
CORPORATION
139 Centre
Street
New York, NY
10013
Senior Secured Notes due May 1, 2008
December 13, 2005
TO EACH OF THE PURCHASERS LISTED
IN
Ladies and Gentlemen:
Globix Corporation, a Delaware
corporation (the “ Company ”) agrees with you as
follows:
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1.
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AUTHORIZATION OF
NOTES.
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The Company will authorize the issue
and sale of up to $5,000,000 aggregate principal amount of its
Senior Secured Notes due May 1, 2008 (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 therefrom, if any, as may be approved in
writing by you and the Company. 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.
2.
SALE AND PURCHASE OF NOTES; TERMS OF NOTES; GUARANTY; GRANTING
OF LIENS.
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2.1.
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Purchase and Sale of Notes; Terms
of Notes.
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(a) Subject
to the terms and conditions of this Agreement, the Company will
issue and sell to you, and you will purchase from the Company, at
the Closing provided for in Section 3 , Notes in the
principal amount specified opposite your name in Schedule A
to be purchased at the Closing at the purchase price of 100% of the
principal amount thereof (the “ Purchase Price
”), to be paid at Closing in cash in the amount of the
Purchase Price as hereafter provided.
(b) No
Notes shall be issued by the Company to any Person other than you
or your designee or assignee communicated in writing to the
Company.
(c) The
date on which the principal amount of the Notes is due and payable
shall be May 1, 2008 (the “ Notes Stated Maturity
”), and the Notes shall have the rights provided herein and
therein and shall bear interest at the rates per annum specified
therein from the Closing Date or from the most recent Interest
Payment Date to which interest has been paid, payable in arrears,
and thereafter as provided in the Notes and at the Notes Stated
Maturity, until the principal thereof is paid in full.
(d) Subject
to Section 14.2, the principal of and interest on the Notes shall
be payable at the office or agency of the Company maintained for
such purpose in 139 Centre Street, New York, NY 10013, or at such
other office or agency of the Company as may be maintained for such
purpose. Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months and, in the case of an
incomplete month, the number of days elapsed.
(e) The
Company’s obligations under the Notes and hereunder do and
will rank in right of payment at all times at least pari
passu with all other present and future Indebtedness of the
Company, and shall be superior in rank to all existing and future
Subordinated Obligations. The Company covenants and agrees that,
except with respect to any Lien permitted by this Agreement, the
Indebtedness represented by the Notes and the payment of the
principal of and interest on each and all of the Notes are hereby
expressly made pari passu in right of payment to all other
present and future Indebtedness other than all Subordinated
Obligations, in respect of which the payment of principal of and
interest on each and all of the Notes is senior.
(f) If
Purchasers other than you are named in Schedule A , the
Company, contemporaneously with entering into this Agreement, is
entering into separate Note Purchase Agreements (the “
Other Agreements ” ) identical with this Agreement with each of
such other Purchasers named in Schedule A (the “
Other Purchasers ” ), providing for the sale at such Closing to
each of the Other Purchasers of Notes in the principal amount
specified to be purchased at Closing opposite its name in
Schedule A . Your obligation hereunder and the obligations
of the Other Purchasers under the Other Agreements are several and
not joint obligations and you shall have no obligation under any
Other Agreement and no liability to any Person for the performance
or non-performance by any Other Purchaser thereunder.
(g) Concurrently
with Closing hereunder, the Company shall pay to you and to the
Other Purchasers an origination fee in the amount of one percent
(1%) of the aggregate principal amount of Notes purchased by you
and such Other Purchasers, respectively, at the Closing. Payment of
such fee may be made by deduction of the amount thereof from the
amount of the Purchase Price payable at Closing.
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2.2.
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Subsidiary Guaranty and Security
Documents.
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(a) The
payment by the Company of all amounts due with respect to the Notes
and the performance by the Company of its obligations under this
Agreement and the Other Agreements will be absolutely and
unconditionally, jointly and severally, guaranteed by the
Subsidiaries of the Company identified on Schedule 2.2(a)
(the “ Subsidiary Guarantors ”), as such may be
amended from time to time to reflect additional Subsidiary
Guarantors, pursuant to the Subsidiary Guaranty Agreement
substantially in the form of Exhibit 2.2(a) attached hereto
and made a part hereof (as the same may be amended, modified,
extended or renewed, the “ Subsidiary Guaranty
”).
(b) The
Notes will be entitled to the benefit of and will be secured by a
Security Agreement substantially in the form of Exhibit
2.2(b) attached hereto and made a part hereof (as the same may
be amended, modified, extended or renewed, the “ Security
Agreement ”), and such other security documents,
financing statements and other filings
(collectively with the Security
Agreement, the “ Security Documents ”) as shall
be necessary such that the Company and the Subsidiary Guarantors
parties thereto shall grant a Lien upon all accounts receivable,
whether now existing or hereafter coming into existence, and
proceeds thereof in an outstanding aggregate amount not to exceed
1.5 times the aggregate principal amount of the Notes specified
herein, all as set forth in such Security Agreement.
(c) The
enforcement of the rights and benefits in respect of the Subsidiary
Guaranty and the Security Agreement and the allocation of proceeds
thereof shall be subject to an intercreditor agreement by and among
the Company, the Collateral Agent and you, and assented to by the
Subsidiary Guarantors, substantially in the form of Exhibit
2.2(c) attached hereto and made a part hereof (as the same may
be amended, modified, extended or renewed, the “
Intercreditor Agreement ”).
The sale and purchase of the Notes
to be purchased by the Purchasers pursuant to
Section 2.1(a) shall occur at the offices of Globix
Corporation, 139 Centre Street, New York, NY 10013 at 9:00 a.m.,
local time, at a closing (the “ Closing ”) on
December 13, 2005 or on such other Business Day thereafter as may
be agreed upon by the Company and you and the Other Purchasers. At
the Closing the Company will deliver to you the Notes then to be
purchased by you in the form of a single Note (or such greater
number of Notes in denominations of at least $100,000 as you may
request) dated the date of the Closing and registered in your name
(or in the name of your nominee), against delivery by you to the
Company or its order of immediately available funds in the amount
of the Purchase Price (less the amount of the origination fee) by
wire transfer of immediately available funds as follows:
Wachovia Bank N.A.
49 Rockefeller Plaza
New York, New York 10020
Swift Code: PNBPU533
ABA No.: 031201467
for the account of: Globix
Corporation
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Account No.:
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2000010228883
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If at the Closing the Company shall
fail to tender such Notes to you as provided above in this
Section 3 , or any of the conditions specified in
Section 4 shall not have been fulfilled to your
satisfaction, you shall, at your election, be relieved of all
further obligations under this Agreement, without thereby waiving
any rights you may have by reason of such failure or such
nonfulfillment.
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4.
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CONDITIONS TO
CLOSING.
|
Your obligation to purchase and pay
for the Notes to be sold to you at the Closing is subject to the
fulfillment to your satisfaction, prior to or at the Closing, of
the following conditions:
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4.1.
|
Representations and
Warranties.
|
(a) The
representations and warranties of the Company in this Agreement
shall be correct when made and at the time of the
Closing.
(b) The
representations and warranties of each Subsidiary Guarantor in the
Subsidiary Guaranty 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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(a) The
Company 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 no Default or Event of
Default shall have occurred and be continuing.
(b) Each
Subsidiary Guarantor shall have performed and complied with all
agreements and conditions contained in the Subsidiary Guaranty
required to be performed and complied with by it prior to or at the
Closing, and after giving effect to the issue and sale of Notes no
Default or Event of Default shall have occurred and be
continuing.
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4.3.
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Certificates of
Officers.
|
(a)
Officer's Certificate . The Company shall have delivered to
you an Officer's Certificate, dated the date of the Closing,
certifying that the conditions specified in Sections 4.1(a)
and 4.2(a) have been fulfilled.
(b)
Subsidiary Guarantor Officer's Certificate . Each Subsidiary
Guarantor shall have delivered to you a certificate of an
authorized officer, dated the date of the Closing, certifying that
the conditions set forth in Sections 4.1(b) and
4.2(b) have been fulfilled as to such Subsidiary
Guarantor.
(c)
Secretary's Certificate . The Company shall have delivered
to you a certificate of the secretary or an assistant secretary of
the Company certifying as to (i) a copy of the certificate of
incorporation of the Company; (ii) a copy of the bylaws of the
Company; and (iii) the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and
delivery of the documents to which the Company is a party and the
incumbency of persons executing such documents.
(d)
Subsidiary Guarantor Secretary's Certificate . Each
Subsidiary Guarantor shall have delivered to you a certificate of
the secretary or an assistant secretary of each Subsidiary
Guarantor certifying as to (i) a copy of the certificate of
incorporation or articles of incorporation of each Subsidiary
Guarantor, (ii) a copy of the bylaws of each Subsidiary Guarantor;
and (iii) the resolutions attached thereto and to other corporate
proceedings relating to the authorization, execution and delivery
of the Subsidiary Guaranty and the incumbency of persons executing
such document.
Contemporaneously with the Closing
the Company shall sell to all of the Other Purchasers, and the
Other Purchasers shall purchase, the Notes to be purchased by them
at the Closing as specified in Schedule A .
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4.5.
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Payment of Counsel
Fees.
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Without limiting the provisions of
Section 15.1 , the Company shall pay or have paid on
the day of the Closing or one (1) Business Day following such
Closing the fees, charges and disbursements of one firm of special
counsel for all of the Purchasers to the extent reflected in a
statement of such counsel rendered to the Company on the day of the
Closing, at the address specified in such statement, provided that
the Company shall not be required to pay such fees, charges and
disbursements in an amount in excess of $10,000.
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4.6.
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Changes in Corporate
Structure.
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Except as specified in Schedule
4.6 , the Company and the Subsidiary Guarantors shall not have
changed their respective jurisdiction of incorporation or been a
party to any merger or consolidation and shall not have succeeded
to all or any substantial part of the liabilities of any other
entity, at any time following the date of the most recent financial
statements referred to in Schedule 5.3 .
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4.7.
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Subsidiary Guaranty,
Etc.
|
The Senior Noteholder Documents
shall be in full force and effect and shall constitute the legal,
valid and binding obligations of all of the respective parties
thereto.
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4.8.
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Proceedings and
Documents.
|
All corporate and other proceedings
in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions
shall be satisfactory to you and your special counsel, and you and
your special counsel shall have received all such counterpart
originals or certified or other copies of such documents as you or
they may reasonably request.
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5.
|
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY.
|
The Company represents and warrants
to you that:
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5.1.
|
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
its jurisdiction of incorporation, and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in
which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good
standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company has the
corporate power and authority to execute and deliver
this
Agreement, the Notes and the Other
Agreements to which it is a party and to perform the provisions
hereof and thereof.
This Agreement, the Notes and the
Other Agreements to which the Company is a party 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 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 (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).
This Agreement, the documents,
certificates or other writings delivered to you by or on behalf of
the Company in connection with the transactions contemplated hereby
and the financial statements listed in Schedule 5.3 ,
taken as a whole, and with such supplementation as may be set forth
on Schedule 5.3 , do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein not misleading in light of the circumstances
under which they were made. Except as 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 5.3 , since June 30, 2005, there has been
no change in the financial condition, operations, business or
properties of the Company or any Subsidiary except changes that
individually or in the aggregate could not reasonably be expected
to have a Material Adverse Effect. There is no fact known to the
Company that could reasonably be expected to have a Material
Adverse Effect that has not been set forth herein or in the other
documents, certificates and other writings delivered to you by or
on behalf of the Company specifically for use in connection with
the transactions contemplated hereby.
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5.4.
|
Organization and Ownership of
Shares of Subsidiaries; Affiliates.
|
(a)
Schedule 5.4 contains (except as noted therein) complete and
correct lists of the Company's Subsidiaries, showing, as to each
Subsidiary, (i) the correct name thereof, (ii) the
jurisdiction of its organization, and, where included, the
organizational identification number, (iii) the percentage of
shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other
Subsidiary, and (iv) the Subsidiary’s directors and senior
officers.
(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 could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each such Subsidiary has the corporate or
other power and authority to own or hold under lease the properties
it purports to own or hold under lease and to transact the business
it transacts and proposes to transact.
(d) No
Subsidiary is a party to, or otherwise subject to, any legal
restriction or any agreement (other than this Agreement, the
agreements listed on Schedule 5.4 and customary limitations
imposed by corporate law statutes) restricting the ability of such
Subsidiary to pay dividends out of profits or make any other
similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or
similar equity interests of such Subsidiary.
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5.5.
|
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 the Company of this Agreement
or the Notes or the issuance of the Notes.
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5.6.
|
Compliance
with Laws, Other Instruments, Etc.
|
The execution, delivery and
performance by the Company of this Agreement and the Notes will not
(a) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien (except for Liens
created pursuant to the Security Agreement) 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 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.
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5.7.
|
Use of
Proceeds; Margin Regulations.
|
The Company will apply the proceeds
of the sale of the Notes for general corporate purposes. No part of
the proceeds from the sale of the Notes hereunder will be used,
directly or indirectly, 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 any of the value of the
consolidated assets of the Company and its Subsidiaries and the
Company does not have any present intention that margin stock will
constitute any portion of the value of such assets. As used in this
Section, the terms “margin stock” and “purpose of
buying or carrying” shall have the meanings assigned to them
in said Regulation U.
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5.8.
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Investment Company Act; Holding
Company Act.
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None of the Company or any
Subsidiary Guarantor is an investment company within the meaning of
the Investment Company Act of 1940, and none of the Company or any
Subsidiary Guarantor is or has been determined by the Securities
and Exchange Commission, the Federal Energy Regulatory Commission
or any successor agency to be subject to, or not exempt from,
regulation under the Public Utility Holding Company Act of
1935.
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5.9.
|
Permitted Senior Secured
Debt.
|
When issued by the Company, the
Notes will be Permitted Senior Secured Debt, as such term is
defined in the Indenture.
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6.
|
REPRESENTATIONS AND WARRANTIES OF
THE PURCHASER.
|
You represent and warrant to the
Company as follows:
You have full power and authority to
enter into this Agreement and such agreement constitutes your valid
and legally binding obligation, enforceable in accordance with its
terms.
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6.2.
|
Purchase Entirely for Own
Account.
|
This Agreement is made with you in
reliance upon your representation to the Company, which by your
execution of this Agreement, you hereby confirm, that the Notes
being acquired by you hereunder will be acquired for investment for
your own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and that you have
no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, you
further represent and warrant that you do not have any contract,
undertaking, agreement or arrangement with any Person to sell,
transfer or grant participation to such Person or to any third
Person, with respect to any of the Notes.
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6.3.
|
Disclosure of
Information.
|
You acknowledge that you have had an
opportunity to discuss the business, affairs and current prospects
of the Company with its officers.
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6.4.
|
Accredited
Investor.
|
You represent and warrant that you
are a financial institution and that you are an “accredited
investor” as that term is defined in Rule 501 of Regulation D
of the Securities and Exchange Commission. You acknowledge that you
are able to fend for yourself, can bear the economic risk of this
transaction, and have such knowledge and experience in financial or
business matters that you are capable of evaluating the merits and
risks of the transaction.
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6.5.
|
Exempt from Registration;
Restricted Securities.
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You understand that the sale of the
Notes will not be registered under the Act, on the ground that the
sale provided for in this Agreement is exempt from registration
under the Securities Act, and that the reliance of the Company on
such exemption is predicated in part on your representations and
warranties set forth in this Agreement. You understand that the
Notes are restricted securities within the meaning of Rule 144
under the Securities Act and must be held indefinitely unless they
are subsequently registered or an exemption from such registration
is available.
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7.
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INFORMATION AS TO THE
COMPANY.
|
|
|
7.1.
|
Financial and Business
Information.
|
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The Company shall deliver to
you:
(a)
Quarterly Statements -- within 45 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, 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 the filing 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 90 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 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 filing 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 Securities and Exchange Commission shall be deemed to
satisfy the requirements of this Section 7.1(b)
;
(c)
Notice of Default or Event of Default -- promptly, and in
any event within ten days after a Responsible Officer becoming
aware of the existence of any Default or Event of Default or that
any Person has given any notice or taken any action with respect to
a claimed default hereunder, 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.
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8.
|
PREPAYMENT OF THE
NOTES.
|
|
|
8.1.
|
No Required
Prepayments.
|
The Notes shall be due and payable
in full at the Notes Stated Maturity, without required
prepayments.
|
|
8.2.
|
Optional
Prepayments.
|
The Company may, at its option, upon
notice as provided below, prepay without premium or penalty at any
time all, or from time to time any part, of the Notes then
outstanding, at 100% of the principal amount so prepaid together
with interest accrued thereon to the date of such prepayment. The
Company will give each holders 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 (the “ Prepayment Date ”). Each such
notice shall specify the Prepayment 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 8.3 ), and the interest to be
paid on the Prepayment Date with respect to such principal amount
being prepaid.
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|
8.3.
|
Allocation Of Partial
Prepayments.
|
In the case of each partial
prepayment of the Notes, the principal amount of the Notes to be
prepaid shall be allocated pro rata among all of the Notes at the
time outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts thereof not theretofore called
for prepayment.
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|
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, together with interest on such
principal amount accrued to such date. From
and after such date, unless the
Company shall fail to pay such principal amount when so due and
payable, together with the interest 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 canceled and shall not
be reissued.
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9.
|
COVENANTS.
|
|
|
9.1.
|
Incorporation of Indenture
Covenants.
|
Commencing on the date of this
Agreement, the Company shall comply with the covenants set forth in
Article Ten (and related definitions) of the Indenture (except for
the covenants and other provisions set forth in, or referring to,
Sections 1001 [Payment of Principal, Premium and Interest], 1002
[Maintenance of Office or Agency], 1003 [Money for Security
Payments to be Held in Trust], 1016 [Change of Control], 1019
[Provision of Financial Information], 1021 [Waiver of Certain
Covenants], 1022 [Perfection of Security Interests], and 1023
[Consummation of Plan of Reorganization]), which covenants are
hereby incorporated by reference; provided , however
, that (i) defined terms utilized in the incorporated
provisions which are defined in Schedule B hereto shall have
the meanings ascribed thereto in Schedule B hereto, and (ii)
each reference therein to “Trustee” shall mean
“the holders of the Notes”, and to “the
Issuer’ shall mean “the Company”, and to
“Indenture” shall mean “this Agreement,”
and to “Securities” shall mean the “Notes”,
and to “Security Documents” shall mean the
“Security Agreement,” and to “Article
Eight” shall mean Section 10 of this Agreement.
Further, each reference to Paying Agent shall be disregarded, and
the second sentence of Section 1001 shall be
disregarded.
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|
9.2.
|
Limitation on Indebtedness;
Negative Pledge.
|
Except for the Notes, neither the
Company nor any Subsidiary will create, incur, assume, guarantee or
in any other manner become directly or indirectly liable for the
payment of any Indebtedness that is senior (whether by agreement or
by operation of law) in right of payment to the Notes or is
additional Permitted Senior Secured Debt (as defined in the
Indenture); provided , however, that the Company and/or a
Subsidiary may incur and become liable with respect to Indebtedness
which is affectively senior to the Notes provided that (i) such
Indebtedness is the Purchase Money Secured Debt (as defined in the
Indenture) and is incurred in connection with purchase money
obligations in respect of any Property or assets purchased after
the Closing Date or to pay all or a portion of the purchase price
of Property or assets acquired by the Company and/or by a
Subsidiary after the Closing Date, (ii) if the Company and/or a
Subsidiary shall grant a security interest in existing Property or
assets, the Company shall, beginning on the date that is 180 days
following the Closing Date, and thereafter, maintain a negative
pledge in favor of the holders of the Notes covering other Property
and assets which are not subject to any security interest senior in
right of payment to the Notes with an asset value coverage ratio,
being the quotient of (x) the fair market value of the assets
covered by the negative pledge to (y) the aggregate principal
amount of the Notes then outstanding, as nearly as practicable
equal to 1.5 to 1.0, or (iii) if such Indebtedness is incurred in
connection with project finance transactions by the Company and/or
a Subsidiary, such Indebtedness will be recourse only to the
project and/or project assets so encumbered, except to the extent a
corporate guarantee by the Company and/or a Subsidiary may be
required in connection therewith. All such Indebtedness as
contemplated under provisos (i), (ii), and (iii) above to the
extent it ranks
senior to the Notes shall rank
senior to the Notes only as to payment from the assets or Property
securing such Indebtedness and shall rank pari passu to the
Notes for all other purposes.
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|
9.3.
|
Future Subsidiary
Guarantors.
|
The Company shall cause each Person
that becomes a Domestic Restricted Subsidiary following the Closing
Date to become a Subsidiary Guarantor by causing such Person to
execute and deliver to the holders of the Notes a joinder agreement
substantially in the form of Exhibit A to the Subsidiary Guaranty,
and to execute the Security Documents, at the time such Person
becomes a Domestic Restricted Subsidiary. In addition, the Company
shall cause each Person that is a Domestic Restricted Subsidiary
actively conducting business on the Closing Date and is not a party
to the Subsidiary Guaranty as of the Closing Date to (a) become a
Subsidiary Guarantor by causing such Person to execute and deliver
to the holders of the Notes a joinder agreement substantially in
the form of Exhibit A to the Subsidiary Guaranty and (b) to execute
the Security Documents, in each case within thirty (30) days
following the later to occur of (i) the Closing Date, or (ii) the
date on which such Domestic Restricted Subsidiary is no longer
party or subject to any Indebtedness or other agreements or
arrangements, in each case to the extent existing on the date
hereof, which restrict or limit such Domestic Restricted
Subsidiary's ability to guarantee the Notes or secure the due and
punctual payment of principal of and interest on the Notes as
provided herein; provided , however, that in no event shall
any such Domestic Restricted Subsidiary be required to become a
Subsidiary Guarantor solely as a result of any extension, renewal,
amendment, refinancing or refunding or any such Indebtedness in
accordance with the terms of this Agreement.
|
10.
|
MERGER, CONSOLIDATION,
ETC.
|
The Company shall not consolidate
with or merge with any other corporation or convey, transfer or
lease substantially all of its assets in a single transaction or
series of transactions to any Person unless:
(a) the
successor formed by such consolidation or the survivor of such
merger or the Person that acquires by conveyance, transfer or lease
substantially all of the assets of the Company as an entirety, as
the case may be, shall be a solvent corporation organized and
existing under the laws of the United States or any State thereof
(including the District of Columbia), and, if the Company is not
such corporation, (i) such corporation shall have executed and
delivered to you its assumption of the due and punctual performance
and observance of each covenant and condition of this Agreement,
the Notes and the Security Documents and (ii) shall have caused to
be delivered to you an opinion of nationally recognized independent
counsel, or other independent counsel reasonably satisfactory to
you, to the effect that all agreements or instruments effecting
such assumption are enforceable in accordance with their terms and
comply with the terms hereof;
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|
(b)
|
the provisions of Section 801(3) of
the Indenture are satisfied; and
|
(c) immediately
after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing.
No such conveyance, transfer or
lease of substantially all of the assets of the Company shall have
the effect of releasing the Company or any successor corporation
that shall theretofore have
become such in the manner prescribed
in this Section 10 from its liability under this
Agreement or the Notes.
(a) “
Event of Default ”, whenever used herein, has (unless
otherwise indicated) the meaning ascribed thereto in
Section 501 of the Indenture, which Section 501 (and the
related definitions) is hereby incorporated by reference (except
for clause (3) thereof); provided , however , that
the defined terms utilized in such incorporated provisions which
are also defined in Schedule B hereto shall have the
meanings ascribed thereto in Schedule B hereto; each
reference therein to “Trustee” shall mean “the
holders of the Notes”, and to “Indenture” shall
mean this “Agreement,” and to “the Issuer”
shall mean “the Company,
