Exhibit 10.1
EXECUTION COPY
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AMCOL INTERNATIONAL CORPORATION
$45,000,000 Series 2007-A Adjustable Fixed Rate Guaranteed Senior
Notes,
Tranche 1, due April 2, 2017
$30,000,000
Series 2007-A Adjustable Floating Rate Guaranteed Senior Notes,
Tranche 2, due April 2, 2017
----------
NOTE PURCHASE AGREEMENT
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Dated as of April 2, 2007
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TABLE OF CONTENTS
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SECTION
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SECTION 1.
Authorization of Notes
.......................................................
1
Section 1.1
Description of Series 2007-A Notes
.................................... 1
Section 1.2
Provisions Relating to the Series 2007-A Tranche 1 Notes
..............
1
Section 1.3
Provisions Relating to the Series 2007-A Tranche 2 Notes
..............
2
SECTION 2. Sale and
Purchase of Notes; Additional Series of Notes; Subsidiary
Guaranty...
3
Section 2.1
Series 2007-A
Notes....................................................
3
Section 2.2
Additional Series of
Notes............................................. 3
Section 2.3
Subsidiary
Guaranty....................................................
5
SECTION 3.
Closing.......................................................................
5
SECTION 4. Conditions
to Closing.........................................................
6
Section 4.1
Representations and
Warranties......................................... 6
Section 4.2
Performance; No
Default................................................
6
Section 4.3
Compliance
Certificates................................................
6
Section 4.4
Opinions of
Counsel....................................................
7
Section 4.5
Purchase Permitted By Applicable Law,
Etc.............................. 7
Section 4.6 Sale
of Other Notes....................................................
7
Section 4.7
Payment of Special Counsel
Fees........................................ 7
Section 4.8
Private Placement
Number............................................... 7
Section 4.9
Changes in Corporate
Structure......................................... 7
Section 4.10
Subsidiary
Guaranty....................................................
8
Section 4.11 Funding
Instructions...................................................
8
Section 4.12
Proceedings and
Documents..............................................
8
SECTION 5. Representations and Warranties of the
Company.................................. 8
Section 5.1
Organization; Power and
Authority...................................... 8
Section 5.2
Authorization,
Etc.....................................................
8
Section 5.3
Disclosure.............................................................
9
Section 5.4
Organization and Ownership of Shares of Subsidiaries;
Affiliates....... 9
Section 5.5
Financial Statements; Material
Liabilities............................. 10
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Section 5.6
Compliance with Laws, Other Instruments,
Etc........................... 10
Section 5.7
Governmental Authorizations,
Etc....................................... 10
Section 5.8
Litigation; Observance of Agreements, Statutes and
Orders..............
11
Section 5.9
Taxes..................................................................
11
Section 5.10 Title to
Property; Leases..............................................
11
Section 5.11 Licenses,
Permits, Etc.................................................
12
Section 5.12
Compliance with
ERISA..................................................
12
Section 5.13 Private
Offering by the Company........................................
13
Section 5.14 Use of
Proceeds; Margin Regulations....................................
13
Section 5.15 Existing
Debt; Future Liens............................................
13
Section 5.16 Foreign
Assets Control Regulations, Etc................................
14
Section 5.17 Status
under Certain Statutes..........................................
14
Section 5.18
Environmental
Matters..................................................
15
Section 5.19 Notes
Rank Pari Passu..................................................
15
SECTION 6.
Representations of the
Purchasers.............................................
16
Section 6.1
Purchase for
Investment................................................
16
Section 6.2
Accredited
Investor....................................................
16
Section 6.3
Source of
Funds........................................................
16
SECTION 7. Information
as to Company.....................................................
18
Section 7.1
Financial and Business
Information..................................... 18
Section 7.2
Officer's
Certificate..................................................
20
Section 7.3
Visitation.............................................................
21
SECTION 8. Payment of
the Notes..........................................................
22
Section 8.1
Required Prepayments;
Maturity......................................... 22
Section 8.2
Optional
Prepayments...................................................
22
Section 8.3
Allocation of Partial
Prepayments...................................... 23
Section 8.4
Maturity; Surrender,
Etc............................................... 23
Section 8.5
Purchase of
Notes......................................................
23
Section 8.6
Offer to Prepay Upon Sale of
Assets.................................... 24
Section 8.7
Make-Whole Amount for the Series 2007-A Tranche 1
Notes................
25
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TABLE OF CONTENTS
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SECTION 9. Affirmative
Covenants.........................................................
26
Section 9.1
Compliance with
Law....................................................
26
Section 9.2
Insurance..............................................................
26
Section 9.3
Maintenance of
Properties..............................................
26
Section 9.4
Payment of Taxes and
Claims............................................ 27
Section 9.5
Corporate Existence,
Etc............................................... 27
Section 9.6
Notes and Subsidiary Guaranty to Rank Pari
Passu....................... 27
Section 9.7
Books and
Records......................................................
27
Section 9.8
Designation of
Subsidiaries............................................
28
Section 9.9
Additional Subsidiary
Guarantors....................................... 28
SECTION 10. Negative
Covenants............................................................
29
Section 10.1
Consolidated Debt to Consolidated
EBITDA............................... 29
Section 10.2 Priority
Debt..........................................................
29
Section 10.3
Limitation on
Liens....................................................
29
Section 10.4 Merger
and Consolidation...............................................
31
Section 10.5 Sales of
Assets........................................................
32
Section 10.6
Transactions with
Affiliates........................................... 33
Section 10.7 Line of
Business.......................................................
33
Section 10.8 Terrorism
Sanctions Regulations........................................
33
Section 10.9
Limitation on Unrestricted
Subsidiaries................................ 34
SECTION 11. Events of
Default.............................................................
34
SECTION 12. Remedies on Default,
Etc......................................................
36
Section 12.1
Acceleration...........................................................
36
Section 12.2 Other
Remedies.........................................................
37
Section 12.3
Rescission.............................................................
37
Section 12.4 No
Waivers or Election of Remedies, Expenses,
Etc...................... 37
SECTION 13. Registration; Exchange; Substitution of
Notes................................. 38
Section 13.1
Registration of
Notes..................................................
38
Section 13.2 Transfer
and Exchange of Notes.........................................
38
Section 13.3
Replacement of
Notes...................................................
38
SECTION 14. Payments on
Notes.............................................................
39
Section 14.1 Place of
Payment.......................................................
39
Section 14.2 Home
Office Payment....................................................
39
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SECTION 15. Expenses,
Etc.................................................................
40
Section 15.1
Transaction
Expenses...................................................
40
Section 15.2
Survival...............................................................
40
SECTION 16. Survival of Representations and Warranties; Entire
Agreement.................. 40
SECTION 17. Amendment and
Waiver..........................................................
41
Section 17.1
Requirements...........................................................
41
Section 17.2
Solicitation of Holders of
Notes....................................... 41
Section 17.3 Binding
Effect, Etc....................................................
42
Section 17.4 Notes
Held by Company, Etc.............................................
42
SECTION 18.
Notices.......................................................................
42
SECTION 19. Reproduction of
Documents.....................................................
43
SECTION 20. Confidential
Information......................................................
43
SECTION 21. Substitution of
Purchaser.....................................................
44
SECTION 22.
Miscellaneous.................................................................
45
Section 22.1
Successors and
Assigns.................................................
45
Section 22.2 Payments
Due on Non-Business Days......................................
45
Section 22.3
Accounting
Terms.......................................................
45
Section 22.4
Severability...........................................................
45
Section 22.5
Construction...........................................................
46
Section 22.6
Counterparts...........................................................
46
Section 22.7 Governing
Law..........................................................
46
Section 22.8
Jurisdiction and Process; Waiver of Jury
Trial......................... 46
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ATTACHMENTS TO THE NOTE PURCHASE AGREEMENT:
Schedule A -
Information Relating
to Purchasers
Schedule B -
Defined Terms
Schedule 5.4 - Subsidiaries of the Company and
Ownership of Subsidiary Stock
Schedule 5.5 - Financial Statements
Schedule 5.15 -
Existing Debt
Schedule 10.3 -
Existing Liens
Exhibit 1(a) - Form of Series 2007-A Adjustable
Fixed Rate Guaranteed Senior
Note, Tranche 1, due April 2, 2017
Exhibit 1(b) - Form of Series 2007-A Adjustable
Floating Rate Guaranteed
Senior Note, Tranche 2, due April 2, 2017
Exhibit 4.4(a) -
Form of Opinion of
Special Counsel to the Company and the
Subsidiary Guarantors
Exhibit 4.4(b) -
Form of Opinion of
Special Counsel to the Purchasers
Exhibit S -
Form of Supplement to
Note Purchase Agreement
Exhibit SG -
Form of Subsidiary
Guaranty
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AMCOL INTERNATIONAL CORPORATION
1500 West Shure Drive, 5th Floor
Arlington Heights, Illinois 60004-7803
$45,000,000 Series 2007-A Adjustable Fixed Rate Guaranteed Senior
Notes,
Tranche 1, due April 2, 2017
$30,000,000
Series 2007-A Adjustable Floating Rate Guaranteed Senior Notes,
Tranche 2, due April 2, 2017
Dated as of
April 2, 2007
TO THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
AMCOL International Corporation, a Delaware corporation (the
"Company"), agrees with the Purchasers listed in the attached
Schedule A (the
"Purchasers") to this Note Purchase Agreement (this "Agreement") as
follows:
SECTION 1. AUTHORIZATION OF NOTES.
Section 1.1
Description of Series 2007-A Notes. The Company will
authorize the issue and sale of $75,000,000 aggregate principal
amount of its
Series 2007-A Senior Notes consisting of (a) $45,000,000 aggregate
principal
amount of its Series 2007-A Adjustable Fixed Rate Guaranteed Senior
Notes,
Tranche 1, due April 2, 2017 (the "Series 2007-A Tranche 1 Notes")
and (b)
$30,000,000 aggregate principal amount of its Series 2007-A
Adjustable Floating
Rate Guaranteed Senior Notes, Tranche 2, due April 2, 2017 (the
"Series 2007-A
Tranche 2 Notes"; the Series 2007-A Tranche 2 Notes together with
the Series
2007-A Tranche 1 Notes are collectively referred to herein as the
"Series 2007-A
Notes"). The Series 2007-A Notes together with each Series of
Additional Notes
which may from time to time be issued pursuant to the provisions of
Section 2.2
are collectively referred to herein as the "Notes" (such term shall
also include
any such notes issued in substitution therefor pursuant to Section
13 of this
Agreement). The Series 2007-A Tranche 1 Notes and the Series 2007-A
Tranche 2
Notes shall be substantially in the forms set out in Exhibit 1(a)
and Exhibit
1(b), respectively, with such changes therefrom, if any, as may be
approved by
the Purchasers and the Company. Certain capitalized and other terms
used in this
Agreement are defined in Schedule B; and references to a "Schedule"
or an
"Exhibit" are, unless otherwise specified, to a Schedule or an
Exhibit attached
to this Agreement.
Section 1.2
Provisions Relating to the Series 2007-A Tranche 1 Notes.
The Series 2007-A Tranche 1 Notes shall bear interest (computed on
the basis of
a 360-day year of twelve 30-day months) on the unpaid principal
thereof from the
date of issuance at the Applicable Fixed Rate, payable semiannually
in arrears
on the second day of April and October in each year commencing on
October 2,
2007 and, to the extent permitted by law, interest (so computed) on
any overdue
payment of interest, on any overdue payment (including any overdue
prepayment)
of principal and on any overdue payment of Make-Whole Amount at the
Default
Rate, until such overdue amounts shall have been paid. "Applicable
Fixed Rate"
shall mean 5.78% per annum, provided that during any period in
which the Company
has elected to increase the Maximum Leverage Ratio to 3.75 to 1.00
pursuant to
Section 10.1, "Applicable Fixed Rate" shall mean 6.03% per annum
during such
period.
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Section 1.3
Provisions Relating to the Series 2007-A Tranche 2 Notes.
(a) The Series 2007-A
Tranche 2 Notes shall bear interest
(computed on the basis of a 360-day year and the actual number of
days
elapsed and, as to each Interest Period or other period during
which
interest accrues, from and including the first day thereof to
but
excluding the last day thereof) on the unpaid principal thereof
from
the date of issuance at a floating rate equal to the Applicable
Floating Rate for the Interest Period in effect from time to
time,
payable quarterly in arrears on each Interest Payment Date and, to
the
extent permitted by applicable law, interest on any overdue payment
of
interest, on any overdue payment (including any overdue prepayment)
of
principal and on any overdue payment of Prepayment Premium and on
any
overdue payment of Breakage Amount at the Default Rate, until
such
overdue amounts shall have been paid. "Applicable Floating Rate"
shall
mean a rate per annum equal to the Adjusted LIBOR Rate, provided
that
during any period in which the Company has elected to increase
the
Maximum Leverage Ratio to 3.75 to 1.00 pursuant to Section
10.1,
"Applicable Floating Rate" shall mean a rate per annum equal to
the
Adjusted LIBOR Rate plus .25% during such period.
(b) The Applicable
Floating Rate shall be determined by the
Company, and notice thereof shall be given to the holders of
Series
2007-A Tranche 2 Notes, within five Business Days after the
beginning
of each Interest Period, together with a copy of the relevant
screen
used for the determination of LIBOR, a calculation of the
Adjusted
LIBOR Rate and the Applicable Floating Rate for such Interest
Period,
the number of days in such Interest Period, the Interest Payment
Date
for such Interest Period and the amount of interest to be paid to
such
holder of Notes on such Interest Payment Date. In the event that
the
holders of more than 50% in aggregate principal amount of the
outstanding Series 2007-A Tranche 2 Notes do not concur with
such
determination by the Company, as evidenced by a single written
notice
to the Company given by such holders of the Series 2007-A Tranche
2
Notes within 10 Business Days after receipt by such holders of
the
notice delivered by the Company pursuant to the immediately
preceding
sentence, the determination of the Applicable Floating Rate shall
be
made by such holders of the Series 2007-A Tranche 2 Notes, and any
such
determination made in accordance with the provisions of this
Agreement,
shall be conclusive and binding absent manifest error. If during
any
Interest Period the Company elects to increase the Maximum
Leverage
Ratio to 3.75 to 1.00 pursuant to Section 10.1 and such election
would
result in an increase
in the Applicable Floating Rating during such
Interest Period from the Applicable Floating Rate provided to
the
holders of the Series 2007-A Tranche 2 Notes pursuant to the
first
sentence of this Section 1.3(b), then, concurrently with the
delivery
of its election to increase the Maximum Leverage Ratio, the
Company
shall provide to the holders of the Series 2007-A Tranche 2 Notes
a
notice setting forth the revised amount of interest to be paid to
each
such holder on the Interest Payment Date for such Interest
Period.
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SECTION 2. SALE AND PURCHASE OF NOTES; ADDITIONAL SERIES OF NOTES;
SUBSIDIARY
GUARANTY.
Section 2.1
Series 2007-A Notes. Subject to the terms and conditions
of this Agreement, the Company will issue and sell to each
Purchaser and each
Purchaser will purchase from the Company, on the Closing Date
provided for in
Section 3, the Series 2007-A Notes of the tranche and in the
principal amount
specified opposite such Purchaser's name in Schedule A at the
purchase price of
100% of the principal amount thereof. The obligations of each
Purchaser
hereunder are several and not joint obligations and no Purchaser
shall have any
obligation or any liability to any Person for the performance or
nonperformance
by any other Purchaser hereunder.
Section 2.2
Additional Series of Notes.
(a) The Company may,
from time to time, in its sole
discretion but subject to the terms hereof, issue and sell one or
more
additional Series of its unsecured promissory notes under the
provisions of this Agreement pursuant to a supplement (a
"Supplement")
substantially in the form of Exhibit S, provided that the
aggregate
principal amount of Notes of all Series issued pursuant to all
Supplements in accordance with the terms of this Section 2.2 shall
not
exceed $225,000,000.
(b) Each additional
Series of Notes (the "Additional Notes")
issued pursuant to a Supplement shall be subject to the following
terms
and conditions:
(1) each Series of
Additional Notes, when so issued,
shall be
differentiated from all previous Series by sequential
alphabetical designation inscribed thereon;
(2) Additional Notes
of the same Series may consist of
more than one different and separate tranches and may differ
with respect to outstanding principal amounts, maturity dates,
interest rates and premiums, if any, and price and terms of
redemption or payment prior to maturity, but all such
different and separate tranches of the same Series shall, if
and to the extent this Agreement requires or permits voting by
Series, vote as a single class and constitute one Series;
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(3) each Series of
Additional Notes shall be dated the
date of issue, bear interest at such rate or rates, mature on
such date or dates, be subject to such put rights and
mandatory and optional prepayment on the dates and at the
premiums, if any, have such additional or different conditions
precedent to closing, such representations and warranties and
such additional covenants and defaults as shall be specified
in the Supplement under which such Additional Notes are issued
and upon execution of any such Supplement, this Agreement
shall be deemed amended (i) to reflect such additional put
rights, covenants and defaults without further action on the
part of the holders of the Notes outstanding under this
Agreement, provided, that any such additional put rights,
covenants and defaults shall inure to the benefit of all
holders of Notes so long as any Additional Notes issued
pursuant to such Supplement remain outstanding and (ii) to
reflect such representations and warranties as are contained
in such Supplement for the benefit of all holders of Notes in
accordance with the provisions of Section 16;
(4) each Series of
Additional Notes issued under this
Agreement shall be in substantially the form of Exhibit 1 to
Exhibit S with such variations, omissions and insertions as
are necessary or permitted hereunder;
(5) the minimum
principal amount of any Note issued
under a Supplement shall be $100,000, except as may be
necessary to evidence the outstanding amount of any Note
originally issued in a denomination of $100,000 or more;
(6) all Additional
Notes shall constitute Senior Debt of
the Company and shall rank pari passu with all other
outstanding Notes; and
(7)
no Additional Notes
shall be issued hereunder if at
the time of issuance thereof and after giving effect to the
application of the proceeds thereof, (i) any Default or Event
of Default shall have occurred and be continuing or (ii) a
waiver of Default or Event of Default shall be in effect.
(c) The right of the
Company to issue, and the obligation of
the Additional Purchasers to purchase, any Additional Notes shall
be
subject to the following conditions precedent, in addition to
the
conditions specified in the Supplement pursuant to which such
Additional Notes may be issued:
(1) a duly authorized
Senior Financial Officer of the
Company shall execute and deliver to each Additional Purchaser
and each holder of Notes an Officer's Certificate dated the
date of issue of such Series of Additional Notes stating that
such officer has reviewed the provisions of this Agreement
(including all Supplements) and setting forth the information
and computations (in sufficient detail) required to establish
whether after giving effect to the issuance of the Additional
Notes and after giving effect to the application of the
proceeds thereof, the Company is in compliance with the
requirements of Section 10.1 on such date;
(2) the Company and
each such Additional Purchaser shall
execute and deliver a Supplement substantially in the form of
Exhibit S;
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(3) each Additional
Purchaser shall have confirmed in
the Supplement that the representations set forth in Section 6
are true with respect to such Additional Purchaser on and as
of the date of issue of such Additional Notes; and
(4) each Subsidiary
Guarantor for which a Collateral
Release shall not have occurred shall execute and deliver a
Guaranty Accession Agreement in the form attached to the
Subsidiary Guaranty.
Section 2.3 Subsidiary
Guaranty.
(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 (including all Supplements) will
be
absolutely and unconditionally guaranteed by the Subsidiary
Guarantors
pursuant to the Subsidiary Guaranty Agreement dated as of April
2,
2007, which shall be substantially in the form of Exhibit SG
(the
"Subsidiary Guaranty").
(b) The holders of the
Notes agree to discharge and release
any Subsidiary Guarantor from the Subsidiary Guaranty upon the
written
request of the Company (a "Collateral Release"), provided that (1)
such
Subsidiary Guarantor has been released and discharged (or will
be
released and discharged concurrently with the release of such
Subsidiary Guarantor under the Subsidiary Guaranty) as an
obligor,
co-obligor and guarantor under and in respect of the Bank
Credit
Agreement and the Company so certifies to the holders of the Notes
in a
certificate of a Responsible Officer, (2) at the time of such
release
and discharge, the Company shall deliver a certificate of a
Responsible
Officer to the holders of the Notes stating that no Default or
Event of
Default shall have occurred and be continuing or will result from
such
release and discharge and (3) if any fee or other form of
consideration
is given to any holder of Debt of the Company, including,
without
limitation, any party to the Bank Credit Agreement, expressly for
the
purpose of such
release, the holders of the Notes shall receive
equivalent consideration.
SECTION 3. CLOSING.
The sale and purchase of the Series 2007-A Notes to be purchased
by
each Purchaser shall occur at the offices of Schiff Hardin LLP, 623
Fifth
Avenue, 28th Floor, New York, New York 10022 at 11:00 a.m. New
York, New York
time, at a closing on April 2, 2007 or on such other Business Day
thereafter as
may be agreed upon by the Company and the Purchasers (the "Closing
Date"). On
the Closing Date, the Company will deliver to each Purchaser the
Series 2007-A
Notes of each tranche to be purchased by such Purchaser in the form
of a single
Series 2007-A Note of such tranche (or such greater number of
Series 2007-A
Notes of such tranche in denominations of at least $100,000 as such
Purchaser
may request) dated the Closing Date and registered in such
Purchaser's name (or
in the name of its nominee), against delivery by such Purchaser to
the Company
or its order of immediately available funds in the amount of the
purchase price
therefor by wire transfer of immediately available funds for the
account of the
Company in compliance with the funding instructions described in
Section 4.10.
If, on the Closing Date, the Company shall fail to tender such
Series 2007-A
Notes to any Purchaser as provided above in this Section 3, or any
of the
conditions specified in Section 4 shall not have been fulfilled to
any
Purchaser's satisfaction, such Purchaser shall, at its election, be
relieved of
all further obligations under this Agreement, without thereby
waiving any rights
such Purchaser may have by reason of such failure or such
nonfulfillment.
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SECTION 4. CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and pay for the Series
2007-A
Notes to be sold to such Purchaser on the Closing Date is subject
to the
fulfillment to such Purchaser's satisfaction, prior to or on the
Closing Date,
of the following conditions:
Section 4.1
Representations and Warranties.
(a) Representations
and Warranties of the Company. The
representations and warranties of the Company in this Agreement
shall
be correct when made and on the Closing Date.
(b)
Representations and
Warranties of the Subsidiary
Guarantors. The representations and warranties of the
Subsidiary
Guarantors in the Subsidiary Guaranty shall be correct when made
and on
the Closing Date.
Section 4.2
Performance; No Default. The Company and each Subsidiary
Guarantor shall have performed and complied with all agreements and
conditions
contained in this Agreement and the Subsidiary Guaranty required to
be performed
or complied with by the Company and each Subsidiary Guarantor prior
to or on the
Closing Date, and immediately after giving effect to the issue and
sale of the
Series 2007-A Notes (and the application of the proceeds thereof as
contemplated
by Section 5.14), no Default or Event of Default shall have
occurred and be
continuing. Neither the Company nor any Subsidiary shall have
entered into any
transaction since February 12, 2007 that would have been prohibited
by Sections
10.3, 10.4, 10.5 or 10.6 had such Section applied since such
date.
Section 4.3
Compliance Certificates.
(a) Officer's
Certificate of the Company. The Company shall
have delivered to such Purchaser an Officer's Certificate, dated
the
Closing Date, certifying that the conditions specified in Sections
4.1,
4.2 and 4.9 have been fulfilled.
(b) Secretary's
Certificate of the Company. The Company shall
have delivered to such Purchaser a certificate of its Secretary or
an
Assistant Secretary, dated the Closing Date, certifying as to
the
resolutions attached thereto and other corporate proceedings
relating
to the authorization, execution and delivery of the Series 2007-A
Notes
and this Agreement.
(c)
Officer's Certificate
of the Subsidiary Guarantors. Each
Subsidiary Guarantor shall have delivered to such Purchaser an
Officer's Certificate, dated the Closing Date, certifying that
the
conditions specified in Sections 4.1(b), 4.2 and 4.9 have been
fulfilled.
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(d) Secretary's
Certificate of the Subsidiary Guarantors.
Each Subsidiary Guarantor shall have delivered to such Purchaser
a
certificate of its Secretary or an Assistant Secretary, dated
the
Closing Date, certifying as to the resolutions attached thereto
and
other corporate or other proceedings relating to the
authorization,
execution and delivery of the Subsidiary Guaranty.
Section 4.4
Opinions of Counsel. Such Purchaser shall have received
opinions in form and substance satisfactory to such Purchaser,
dated the Closing
Date (a) from Lord, Bissell & Brook LLP, special counsel for
the Company and the
Subsidiary Guarantors, covering the matters set forth in Exhibit
4.4(a) and
covering such other matters incident to the transactions
contemplated hereby as
such Purchaser or special counsel to the Purchasers may reasonably
request (and
the Company hereby instructs its counsel to deliver such opinion to
the
Purchasers) and (b) from Schiff Hardin LLP, special counsel to the
Purchasers in
connection with such transactions, substantially in the form set
forth in
Exhibit 4.4(b) and covering such other matters incident to such
transactions as
such Purchaser may reasonably request.
Section 4.5
Purchase Permitted By Applicable Law, Etc. On the Closing
Date, such Purchaser's purchase of Series 2007-A Notes shall (a) be
permitted by
the laws and regulations of each jurisdiction to which such
Purchaser is
subject, without recourse to provisions (such as Section 1405(a)(8)
of the New
York Insurance Law) permitting limited investments by insurance
companies
without restriction as to the character of the particular
investment, (b) not
violate any applicable law or regulation (including, without
limitation,
Regulation T, U or X of the Board of Governors of the Federal
Reserve System)
and (c) not subject such Purchaser to any tax, penalty or liability
under or
pursuant to any applicable law or regulation. If requested by such
Purchaser,
such Purchaser shall have received an Officer's Certificate from
the Company
certifying as to such matters of fact as such Purchaser may
reasonably specify
to enable such Purchaser to determine whether such purchase is so
permitted.
Section 4.6 Sale
of Other Notes. On the Closing Date, the Company
shall sell to each other Purchaser and each other Purchaser shall
purchase the
Series 2007-A Notes to be purchased by it on the Closing Date as
specified in
Schedule A.
Section 4.7
Payment of Special Counsel Fees. Without limiting the
provisions of Section 15.1, the Company shall have paid on or
before the Closing
Date, the reasonable fees, reasonable charges and reasonable
disbursements of
special counsel to the Purchasers referred to in Section 4.4(b) to
the extent
reflected in a statement of such counsel rendered to the Company at
least one
Business Day prior to the Closing Date.
Section 4.8
Private Placement Number. A Private Placement Number
issued by Standard & Poor's CUSIP Service Bureau (in
cooperation with the SVO)
shall have been obtained for each tranche of the Series 2007-A
Notes.
Section 4.9 Changes in
Corporate Structure. Neither the Company nor
any Subsidiary Guarantor shall have changed its jurisdiction of
incorporation or
been a party to any merger or consolidation, or shall 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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<PAGE>
Section 4.10
Subsidiary Guaranty. The Subsidiary Guaranty shall have
been duly authorized, executed and delivered by each Subsidiary
Guarantor, shall
constitute the legal, valid and binding contract and agreement of
each
Subsidiary Guarantor and such Purchaser shall have received a true,
correct and
complete copy thereof.
Section 4.11 Funding
Instructions. At least three Business Days prior
to the Closing Date, such Purchaser shall have received written
instructions
signed by a Responsible Officer on letterhead of the Company
directing the
manner of the payment of funds and setting forth (a) the name and
address of the
transferee bank, (b) such transferee bank's ABA number and (c) the
account name
and number into which the purchase price for the Series 2007-A
Notes is to be
deposited.
Section 4.12
Proceedings and Documents. All corporate and other
organizational proceedings in connection with the transactions
contemplated by
this Agreement and the Subsidiary Guaranty and all documents and
instruments
incident to such transactions shall be satisfactory to such
Purchaser and
special counsel to the Purchasers, and such Purchaser and special
counsel to the
Purchasers shall have received all such counterpart originals or
certified or
other copies of such documents as such Purchaser or special counsel
to the
Purchasers may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser that:
Section 5.1
Organization; Power and Authority. The Company is a
corporation duly organized, validly existing and in good standing
under the laws
of its jurisdiction of incorporation, and is duly qualified as a
foreign
corporation and is in good standing in each jurisdiction in which
such
qualification is required by law, other than those jurisdictions as
to which the
failure to be so qualified or in good standing would not,
individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. The Company
has the corporate power and authority to own or hold under lease
the properties
it purports to own or hold under lease, to transact the business it
transacts
and proposes to transact, to execute and deliver this Agreement and
the Series
2007-A Notes and to perform the provisions hereof and thereof.
Section 5.2
Authorization, Etc.
(a) This Agreement and
the Series 2007-A Notes to be issued
on the Closing Date have been duly authorized by all necessary
corporate action on the part of the Company, and this Agreement
constitutes, and upon execution and delivery thereof each such
Series
2007-A Note will constitute, a legal, valid and binding obligation
of
the Company enforceable against the Company in accordance with
its
terms, except as such enforceability may be limited by (1)
applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar
laws affecting the enforcement of creditors' rights generally and
(2)
general principles of equity (regardless of whether such
enforceability
is considered in a proceeding in equity or at law).
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<PAGE>
(b) The Subsidiary
Guaranty has been duly authorized by all
necessary corporate or other action on the part of each
Subsidiary
Guarantor and the Subsidiary Guaranty 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 (1) applicable bankruptcy,
insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (2) general
principles
of equity (regardless of whether such enforceability is considered
in a
proceeding in equity or at law).
Section 5.3
Disclosure. This Agreement, the documents, certificates
or other writings delivered to the Purchasers by or on behalf of
the Company in
connection with the transactions contemplated hereby and the
financial
statements listed in Schedule 5.5 (this Agreement, such documents,
certificates
or other writings and such financial statements delivered to each
Purchaser
prior to February 12, 2007, being referred to, collectively, as the
"Disclosure
Documents"), taken as a whole, do not contain any untrue statement
of a material
fact or omit to state any material fact necessary to make the
statements therein
not misleading in light of the circumstances under which they were
made. Except
as disclosed in the Disclosure Documents, since December 31, 2005,
there has
been no change in the financial condition, operations, business or
properties of
the Company or any Restricted Subsidiary except changes that,
individually or in
the aggregate, would not reasonably be expected to have a Material
Adverse
Effect. There is no fact known to a Responsible Officer that would
reasonably be
expected to have a Material Adverse Effect that has not been set
forth herein or
in the Disclosure Documents; provided that this representation
shall not include
any facts (a) that relate to the industry in which the Company or
any Restricted
Subsidiary participates generally or (b) that relate to general
economic
conditions.
Section 5.4
Organization and
Ownership of Shares of Subsidiaries;
Affiliates.
(a) Schedule 5.4
contains (except as noted therein) complete
and correct lists of (1) the Company's Restricted and
Unrestricted
Subsidiaries, showing, as to each Subsidiary, the correct name
thereof,
the jurisdiction of its organization and the percentage of shares
of
each class of its capital stock or similar equity interests
outstanding
owned by the Company and each other Subsidiary, (2) the Company's
known
Affiliates, other than Subsidiaries and (3) the Company'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 would
not,
individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect. Each such Subsidiary has the corporate
or
other power and authority to own or hold under lease the properties
it
purports to own or hold under lease and to transact the business
it
transacts and proposes to transact and, in the case of each
Subsidiary
that is a Subsidiary Guarantor, to execute and deliver the
Subsidiary
Guaranty and to perform the provisions thereof.
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<PAGE>
(d) No Subsidiary is a
party to, or otherwise subject to, any
legal, regulatory, contractual or other restriction (other than
this
Agreement, the agreements listed on Schedule 5.4 and customary
limitations imposed by corporate law or similar 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
other
Subsidiary that owns outstanding shares of capital stock or
similar
equity interests of such Subsidiary.
Section 5.5
Financial Statements; Material Liabilities. The
Company has delivered to each Purchaser copies of the financial
statements of
the Company and its Subsidiaries listed on Schedule 5.5. All 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). The Company and its Subsidiaries do
not have any
Material liabilities that are not disclosed on such financial
statements or
otherwise disclosed in the Disclosure Documents.
Section 5.6
Compliance with Laws, Other Instruments, Etc. The
execution, delivery and performance by the Company of this
Agreement and the
Series 2007-A Notes and the execution, delivery and performance by
each
Subsidiary Guarantor of the Subsidiary Guaranty will not (a)
contravene, result
in any breach of, or constitute a default under, or result in the
creation of
any Lien in respect of any property of the Company or any
Subsidiary under, any
indenture, mortgage, deed of trust, loan, purchase or credit
agreement, lease,
corporate charter or by-laws, or any other agreement or instrument
to which the
Company or any Subsidiary is bound or by which the Company or any
Subsidiary or
any of their respective properties may be bound or affected, (b)
conflict with
or result in a breach of any of the terms, conditions or provisions
of any
order, judgment, decree or ruling of any court, arbitrator or
Governmental
Authority applicable to the Company or any Subsidiary or (c)
violate any
provision of any statute or other rule or regulation of any
Governmental
Authority applicable to the Company or any Subsidiary.
Section 5.7
Governmental Authorizations, Etc. No consent, approval or
authorization of, or registration, filing or declaration with, any
Governmental
Authority is required to be made or obtained by the Company or any
Subsidiary in
connection with the execution, delivery or performance by (a) the
Company of
this Agreement or the Series 2007-A Notes or (b) any Subsidiary
Guarantor of the
Subsidiary Guaranty.
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<PAGE>
Section 5.8
Litigation; Observance of Agreements, Statutes and
Orders.
(a) There are no
actions, suits, investigations or
proceedings pending or, to the knowledge of the Company,
threatened
against or affecting the Company or any Restricted Subsidiary or
any
property of the Company or any Restricted Subsidiary in any court
or
before any arbitrator of any kind or before or by any
Governmental
Authority that, individually or in the aggregate, would reasonably
be
expected to have a Material Adverse Effect.
(b) Neither the
Company nor any Restricted Subsidiary is in
default under any term of any agreement or instrument to which it
is a
party or by which it is bound, or any order, judgment, decree or
ruling
of any court, arbitrator or Governmental Authority or is in
violation
of any applicable law, ordinance, rule or regulation
(including,
without limitation, Environmental Laws, ERISA or the USA Patriot
Act)
of any Governmental Authority, which default or violation,
individually
or in the aggregate, would reasonably be expected to have a
Material
Adverse Effect.
Section 5.9
Taxes. The Company and its Subsidiaries have filed all
tax returns that are required to have been filed in any
jurisdiction, and have
paid all taxes shown to be due and payable on such returns and all
other taxes
and assessments levied upon them or their properties, assets,
income or
franchises, to the extent such taxes and assessments have become
due and payable
and before they have become delinquent, except for any taxes and
assessments (a)
the amount of which is not, individually or in the aggregate,
Material or (b)
the amount, applicability or validity of which is currently being
contested in
good faith by appropriate proceedings and with respect to which the
Company or a
Subsidiary, as the case may be, has established adequate reserves
in accordance
with GAAP. The Company knows of no basis for any other tax or
assessment that
would reasonably be expected to have a Material Adverse Effect. The
charges,
accruals and reserves on the books of the Company and its
Subsidiaries in
respect of federal, state or other taxes for all fiscal periods are
adequate.
The federal income tax liabilities of the Company and its
Subsidiaries have been
finally determined (whether by reason of completed audits or the
statute of
limitations having run) for all fiscal years up to and including
the fiscal year
ended December 31, 2002.
Section 5.10 Title to
Property; Leases. The Company and its Restricted
Subsidiaries have good and sufficient title to their respective
properties which
the Company and its Restricted Subsidiaries own or purport to own
that,
individually or in the aggregate, are Material, including all such
properties
reflected in the most recent audited balance sheet referred to in
Section 5.5 or
purported to have been acquired by the Company or any Restricted
Subsidiary
after said date (except as sold or otherwise disposed of in the
ordinary course
of business), in each case free and clear of Liens prohibited by
this Agreement.
All leases that, individually or in the aggregate, are Material are
valid and
subsisting and are in full force and effect in all material
respects.
Section 5.11 Licenses,
Permits, Etc.
(a) The Company and
its Restricted Subsidiaries own or
possess all licenses, permits, franchises, authorizations,
patents,
copyrights, proprietary software, service marks, trademarks,
trade
names and domain names, or rights thereto, that, individually or in
the
aggregate, are Material, without known conflict with the rights
of
others.
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<PAGE>
(b) To the best
knowledge of the Company, no product of the
Company or any of its Restricted Subsidiaries infringes in any
material
respect any license, permit, franchise, authorization, patent,
copyright, proprietary software, service mark, trademark, trade
name,
domain name or other right owned by any other Person.
(c) To the best
knowledge of the Company, there is no
Material violation by any Person of any right of the Company or any
of
its Restricted Subsidiaries with respect to any patent,
copyright,
proprietary software, service mark, trademark, trade name, domain
name
or other right owned or used by the Company or any of its
Restricted
Subsidiaries.
Section 5.12
Compliance with ERISA.
(a) The Company and
each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws
except
for such instances of noncompliance as have not resulted in, and
would
not reasonably be expected to result in, a Material Adverse
Effect.
Neither the Company nor any ERISA Affiliate has incurred any
liability
pursuant to Title I or
IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans (as
defined
in Section 3 of ERISA), and no event, transaction or condition
has
occurred or exists that would reasonably be expected to result in
the
incurrence of any such liability by the Company or any ERISA
Affiliate,
or in the imposition of any Lien on any of the rights, properties
or
assets of the Company or any ERISA Affiliate, in either case
pursuant
to Title I or IV of ERISA or to such penalty or excise tax
provisions
or to Section 401(a)(29) or 412 of the Code or Section 4068 of
ERISA,
other than such liabilities or Liens as would not be, individually
or
in the aggregate, Material.
(b) The present value
of the aggregate benefit liabilities
under each of the Plans (other than Multiemployer Plans),
determined as
of the end of such Plan's most recently ended plan year on the
basis of
the actuarial assumptions specified for funding purposes in such
Plan's
most recent actuarial valuation report, did not exceed the
aggregate
current value of the assets of such Plan allocable to such
benefit
liabilities. The term "benefit liabilities" has the meaning
specified
in Section 4001 of ERISA and the terms "current value" and
"present
value" have the meanings specified in Section 3 of ERISA.
(c) The Company and
its ERISA Affiliates have not incurred
any withdrawal liabilities (and are not subject to contingent
withdrawal liabilities) under Section 4201 or 4204 of ERISA in
respect
of Multiemployer Plans that, individually or in the aggregate,
are
Material.
(d) The expected
post-retirement benefit obligation
(determined as of the last day of the Company's most recently
ended
fiscal year in accordance with Financial Accounting Standards
Board
Statement No. 106, without regard to liabilities attributable
to
continuation coverage mandated by Section 4980B of the Code) of
the
Company and its Subsidiaries is not Material.
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<PAGE>
(e) The execution and
delivery of this Agreement and the
issuance and sale of the Series 2007-A Notes hereunder to each
Purchaser will not involve any transaction with respect to such
Purchaser that is subject to the prohibitions of Section 406 of
ERISA
or in connection with which a tax would be imposed pursuant to
Section
4975(c)(1)(A)-(D) of the Code. The representation by the Company
to
each Purchaser in the first sentence of this Section 5.12(e) is
made in
reliance upon and subject to the accuracy of such Purchaser's
representation in Section 6.3 as to the sources of the funds to be
used
to pay the purchase price of the Series 2007-A Notes to be
purchased by
such Purchaser.
Section 5.13 Private
Offering by the Company. Neither the Company nor
anyone acting on the Company's behalf has offered the Series 2007-A
Notes, the
Subsidiary Guaranty or any similar securities for sale to, or
solicited any
offer to buy any of the same from, or otherwise approached or
negotiated in
respect thereof with, any Person other than the Purchasers and not
more than
five other Institutional Investors of the type described in clause
(c) of the
definition thereof, each of which has been offered the Series
2007-A Notes and
the Subsidiary Guaranty in connection with a private sale for
investment.
Neither the Company nor anyone acting on the Company's behalf has
taken, or will
take, any action that would subject the issuance or sale of the
Series 2007-A
Notes or the Subsidiary Guaranty to the registration requirements
of Section 5
of the Securities Act or to the registration requirements of any
securities or
blue sky laws of any applicable jurisdiction. The representation by
the Company
in the preceding sentence is made in reliance upon and subject to
the accuracy
of the Purchasers' representations in Sections 6.1 and Section
6.2.
Section 5.14 Use of
Proceeds; Margin Regulations. The Company will
apply the proceeds of the sale of the Series 2007-A Notes to
refinance existing
indebtedness and for other general corporate purposes of the
Company. No part of
the proceeds from the sale of the Series 2007-A Notes hereunder
will be used,
directly or indirectly, for the purpose of buying or carrying any
margin stock
within the meaning of Regulation U of the Board of Governors of the
Federal
Reserve System (12 CFR 221), or for the purpose of buying or
carrying or trading
in any securities under such circumstances as to involve the
Company in a
violation of Regulation X of said Board (12 CFR 224) or to involve
any broker or
dealer in a violation of Regulation T of said Board (12 CFR 220).
Margin stock
does not constitute more than 5% of the value of the consolidated
total assets
of the Company and its Subsidiaries and the Company does not have
any present
intention that margin stock will constitute more than 5% of the
value of such
assets. As used in this Section, the terms "margin stock" and
"purpose of buying
or carrying" shall have the meanings assigned to them in said
Regulation U.
Section 5.15 Existing
Debt; Future Liens.
(a) Except as
described therein, Schedule 5.15 sets forth a
complete and correct list of all outstanding Debt of the Company
and
its Restricted Subsidiaries as of February 28, 2007 (including
a
description of the obligors and obligees, principal amount
outstanding
and collateral therefor, if any, and Guaranty thereof, if any),
since
which date there has been no Material change in the amounts,
interest
rates, sinking funds, installment payments or maturities of the
Debt of
the Company or its Restricted Subsidiaries. Neither the Company nor
any
Restricted Subsidiary is in default and no waiver of default is
currently in effect, in the payment of any principal or interest on
any
Debt of the Company or such Restricted Subsidiary, and no event
or
condition exists with respect to any Debt of the Company or any
Restricted Subsidiary, 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.
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<PAGE>
(b) Except as
disclosed in Schedule 5.15, neither the Company
nor any Restricted Subsidiary has agreed or consented to cause
or
permit in the future (upon the happening of a contingency or
otherwise)
any of its property, whether now owned or hereafter acquired, to
be
subject to a Lien not permitted by Section 10.3.
(c) Neither the
Company nor any Subsidiary is a party to, or
otherwise subject to any provision contained in, any instrument
evidencing Debt of the Company or such Subsidiary, any
agreement
relating thereto or any other agreement (including, but not limited
to,
its charter or other organizational document) which limits the
amount
of, or otherwise imposes restrictions on the incurring of, Debt of
the
Company, except as specifically indicated in Schedule 5.15.
Section 5.16 Foreign
Assets Control Regulations, Etc.
(a) Neither the sale
of the Series 2007-A Notes by the
Company hereunder nor its use of the proceeds thereof will violate
the
Trading with the Enemy Act, as amended, or any of the foreign
assets
control regulations of the United States Treasury Department (31
CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation
or
executive order relating thereto.
(b) Neither the
Company nor any Subsidiary (1) 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 (2) knowingly 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 Series
2007-A Notes hereunder will be used, directly or indirectly, for
any
payments to any governmental official or employee, political
party,
official of a political party, candidate for political office,
or
anyone else acting in an official capacity, in order to obtain,
retain
or direct business or obtain any improper advantage, in violation
of
the United States Foreign Corrupt Practices Act of 1977, as
amended,
assuming in all cases that such Act applies to the Company.
Section 5.17 Status
under Certain Statutes. Neither the Company nor
any Restricted Subsidiary is subject to regulation under the
Investment Company
Act of 1940, as amended, the Public Utility Holding Company Act of
2005, as
amended, the ICC Termination Act of 1995, as amended, or the
Federal Power Act,
as amended.
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<PAGE>
Section 5.18
Environmental Matters.
(a)
Neither the Company
nor any Restricted Subsidiary has
knowledge of any claim or has received any notice of any claim, and
no
proceeding has been instituted raising any claim against the
Company or
any of its Restricted Subsidiaries or any of their respective
real
properties now or formerly owned, leased or operated by any of them
or
other assets, alleging any damage to the environment or violation
of
any Environmental Laws, except, in each case, such as would not
reasonably be expected to result in a Material Adverse Effect.
(b) Neither the
Company nor any Restricted Subsidiary has
knowledge of any facts which would give rise to any claim, public
or
private, of violation of Environmental Laws or damage to the
environment emanating from, occurring on or in any way related to
real
properties now or formerly owned, leased or operated by any of them
or
to other assets or their use, except, in each case, such as would
not
reasonably be expected to result in a Material Adverse Effect.
(c) Neither the
Company nor any Restricted Subsidiary has
stored any Hazardous Materials on real properties now or
formerly
owned, leased or operated by any of them or has disposed of any
Hazardous Materials in each case in a manner contrary to any
Environmental Laws in each case in any manner that would reasonably
be
expected to result in a Material Adverse Effect.
(d) All buildings on
all real properties now owned, leased or
operated by the Company or any Restricted Subsidiary are in
compliance
with applicable Environmental Laws, except where failure to
comply
would not reasonably be expected to result in a Material
Adverse
Effect.
Section 5.19 Notes
Rank Pari Passu.
(a) The obligations of
the Company under this Agreement and
the Series 2007-A Notes rank pari passu in right of payment with
all
other unsecured Senior Debt (actual or contingent) of the
Company,
including, without limitation, all unsecured Senior Debt of the
Company
described in Schedule 5.15.
(b) The obligations of
each Subsidiary Guarantor under the
Subsidiary Guaranty rank pari passu in right of payment with all
other
unsecured Senior Debt (actual or contingent) of such Subsidiary
Guarantor, including, without limitation, all unsecured Senior Debt
of
such Subsidiary Guarantor described in Schedule 5.15.
-15-
<PAGE>
SECTION 6. REPRESENTATIONS OF THE PURCHASERS.
Section 6.1
Purchase for Investment. Each Purchaser severally
represents that it is purchasing the Series 2007-A Notes for its
own account or
for one or more separate accounts maintained by it or for the
account of one or
more pension or trust funds and not with a view to the distribution
thereof,
provided that any Notes purchased by Banc of America Securities LLC
on the
Closing Date may, in the alternative, be purchased with the intent
to be resold
to a Qualified Institutional Buyer pursuant to Rule 144A of the
Securities Act,
provided further that, in any case, the disposition of such
Purchaser's or such
pension or trust fund's property shall at all times be within such
Purchaser's
or such pension or trust fund's control. Each Purchaser understands
that the
Series 2007-A Notes have not been registered under the Securities
Act and may be
resold only if registered pursuant to the provisions of the
Securities Act or if
an exemption from registration is available, except under
circumstances where
neither such registration nor such an exemption is required by law,
and that the
Company is not required to register the Series 2007-A Notes.
Section 6.2
Accredited Investor. Each Purchaser represents that it is
an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) of
Regulation D under the Securities Act) acting for its own account
(and not for
the account of others) or as a fiduciary or agent for others (which
others are
also "accredited investors"). Each Purchaser further represents
that such
Purchaser has had the opportunity to ask questions of the Company
and received
answers concerning the terms and conditions of the sale of the
Series 2007-A
Notes.
Section 6.3
Source of Funds. Each Purchaser severally represents that
at least one of the following statements is an accurate
representation as to
each source of funds (a "Source") to be used by such Purchaser to
pay the
purchase price of the Series 2007-A Notes to be purchased by such
Purchaser
hereunder:
(a) the Source is an
"insurance company general account" (as
the term is defined in the United States Department of Labor's
Prohibited Transaction Class Exemption ("PTE") 95-60) in respect
of
which the reserves and liabilities (as defined by the annual
statement
for life insurance companies approved by the NAIC (the "NAIC
Annual
Statement")) for the general account contract(s) held by or on
behalf
of any employee benefit plan together with the amount of the
reserves
and liabilities for the general account contract(s) held by or
on
behalf of any other employee benefit plans maintained by the
same
employer (or affiliate thereof as defined in PTE 95-60) or by the
same
employee organization in the general account do not exceed 10% of
the
total reserves and liabilities of the general account (exclusive
of
separate account liabilities) plus surplus as set forth in the
NAIC
Annual Statement filed with such Purchaser's state of domicile;
or
(b) the Source is a
separate account that is maintained
solely in connection with such Purchaser's fixed contractual
obligations under which the amounts payable, or credited, to
any
employee benefit plan (or its related trust) that has any interest
in
such separate account (or to any participant or beneficiary of
such
plan (including any annuitant)) are not affected in any manner by
the
investment performance of the separate account; or
(c) the Source is
either (1) an insurance company pooled
separate account, within the meaning of PTE 90-1 or (2) a bank
collective investment fund, within the meaning of PTE 91-38 and,
except
as disclosed by such Purchaser to the Company in writing pursuant
to
this clause (c), no employee benefit plan or group of plans
maintained
by the same employer or employee organization beneficially owns
more
than 10% of all assets allocated to such pooled separate account
or
collective investment fund; or
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<PAGE>
(d) the Source
constitutes assets of an "investment fund"
(within the meaning of Part V of PTE 84-14 (the "QPAM
Exemption"))
managed by a "qualified professional asset manager" or "QPAM"
(within
the meaning of Part V of the QPAM Exemption), no employee
benefit
plan's assets that are included in such investment fund, when
combined
with the assets of all other employee benefit plans established
or
maintained by the same employer or by an affiliate (within the
meaning
of Section V(c)(1) of the QPAM Exemption) of such employer or by
the
same employee organization and managed by such QPAM, exceed 20% of
the
total client assets managed by such QPAM, the conditions of Part
I(c)
and (g) of the QPAM Exemption are satisfied, neither the QPAM nor
a
Person controlling or controlled by the QPAM (applying the
definition
of "control" in Section V(e) of the QPAM Exemption) owns a 5% or
more
interest in the Company and (1) the identity of such QPAM and (2)
the
names of all employee benefit plans whose assets are included in
such
investment fund have been disclosed to the Company in writing
pursuant
to this clause (d); or
(e) the Source
constitutes assets of a "plan(s)" (within the
meaning of Section IV of PTE 96-23 (the "INHAM Exemption")) managed
by
an "in-house asset manager" or "INHAM" (within the meaning of Part
IV
of the INHAM Exemption), the conditions of Part I(a), (g) and (h)
of
the INHAM Exemption are satisfied, neither the INHAM nor a
Person
controlling or controlled by the INHAM (applying the definition
of
"control" in Section IV(d) of the INHAM Exemption) owns a 5% or
more
interest in the Company and (1) the identity of such INHAM and (2)
the
name(s) of
the employee benefit plan(s) whose assets constitute the
Source have been disclosed to the Company in writing pursuant to
this
clause (e); or
(f) the Source is a
governmental plan; or
(g) the Source is one or more employee
benefit plans, or a
separate account or trust fund comprised of one or more
employee
benefit plans, each of which has been identified to the Company
in
writing pursuant to this clause (g); or
(h) the Source does
not include assets of any employee
benefit plan, other than a plan exempt from the coverage of
ERISA.
As used in this Section 6.3, the terms "employee benefit plan,"
"governmental
plan" and "separate account" shall have the respective meanings
assigned to such
terms in Section 3 of ERISA.
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SECTION 7. INFORMATION AS TO COMPANY.
Section 7.1
Financial and Business Information. The Company shall
deliver to each holder of Notes that is an Institutional
Investor:
(a) Quarterly
Statements -- within 60 days after the end of
each quarterly fiscal period in each fiscal year of the Company
(other
than the last quarterly fiscal period of each such fiscal year),
copies
of:
(1) a consolidated
balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(2) consolidated
statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in each case in comparative form the figures for
the
corresponding periods in the previous fiscal year, all in
reasonable
detail, prepared in accordance with GAAP applicable to
quarterly
financial statements generally, and certified by a Senior
Financial
Officer as fairly presenting, in all material respects, the
financial
position of the companies being reported on and their results
of
operations and cash flows, subject to changes resulting from
year-end
adjustments, provided that delivery within the time period
specified
above of copies of the Company's Quarterly Report on Form 10-Q
prepared
in compliance with the requirements therefor and filed with the
SEC
shall be deemed to satisfy the requirements of this Section
7.1(a);
(b) Annual
Statements-- within 105 days after the end of each
fiscal year of the Company, copies of:
(1) a consolidated
balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(2) consolidated
statements of income, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such year,
setting forth in each case in comparative form the figures for
the
previous fiscal year, all in reasonable detail, prepared in
accordance
with GAAP,
and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing,
which
opinion shall state that such financial statements present fairly,
in
all material respects, the financial position of the companies
being
reported upon and their results of operations and cash flows and
have
been prepared in conformity with GAAP, and that the examination of
such
accountants in connection with such financial statements has been
made
in accordance with generally accepted auditing standards, and that
such
audit provides a reasonable basis for such opinion in the
circumstances, provided that the delivery within the time
period
specified above of the Company's Annual Report on Form 10-K for
such
fiscal year (together with the Company's annual report to
shareholders,
if any, prepared pursuant to Rule 14a-3 under the Exchange Act)
prepared in accordance with the requirements therefor and filed
with
the SEC shall be deemed to satisfy the requirements of this
Section
7.1(b);
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<PAGE>
(c) SEC and Other
Reports -- except for filings referred to
in Section 7.1(a) and (b) above, promptly upon their becoming
available
and, to the extent applicable, one copy of (1) each financial
statement, report, notice or proxy statement sent by the Company or
any
Subsidiary to its principal lending banks as a whole (excluding
information sent to such banks in the ordinary course of
administration
of a bank facility, such as information relating to pricing and
borrowing availability) or to its public securities holders
generally
and (2) each regular or periodic report, each registration
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 SEC;
(d) Notice of Default
or Event of Default -- promptly, and in
any event within five Business Days after a Responsible Officer
becomes
aware of the existence of any Default or Event of Default or that
any
holder of Notes has given any notice in writing or taken any
action
with respect to a claimed default hereunder or that any Person
has
given any notice in writing or taken any action with respect to
a
claimed default of the type referred to in Section 11(g), a
written
notice specifying the nature and period of existence thereof and
what
action the Company is taking or proposes to take with respect
thereto;
(e) ERISA Matters --
promptly, and in any event within five
Business Days after a Responsible Officer becomes aware of any of
the
following, a written notice setting forth the nature thereof and
the
action, if any, that the Company or an ERISA Affiliate proposes to
take
with respect thereto:
(1) with respect to
any Plan, any reportable event, as
defined in Section 4043(c) of ERISA and the regulations
thereunder, for which notice thereof has not been waived
pursuant to such regulations as in effect on the date thereof;
or
(2) the taking by the
PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan; or
(3) any event,
transaction or condition that would
result in the incurrence of any liability by the Company or
any ERISA Affiliate pursuant to Title I or IV of ERISA or the
imposition of a penalty or excise tax under the provisions of
the Code relating to employee benefit plans, or the imposition
of any Lien on any of the rights, properties or assets of the
Company or any ERISA Affiliate pursuant to Title I or IV of
ERISA or such penalty or excise tax provisions, if such
liability or Lien, taken together with any other such
liabilities or Liens then existing, would reasonably be
expected to have a Material Adverse Effect; or
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<PAGE>
(4) receipt of notice
of the imposition of a Material
financial penalty (which for this purpose shall mean any tax,
penalty or other liability, whether by way of indemnity or
otherwise) with respect to one or more Non-U.S. Plans;
(f) Notices from
Governmental Authority -- promptly, and in
any event within 30 days of receipt thereof, copies of any notice
to
the Company or any Subsidiary from any federal or state
Governmental
Authority relating to any order, ruling, statute or other law
or
regulation that would reasonably be expected to have a Material
Adverse
Effect;
(g) Supplements --
promptly and in any event within 10
Business Days after the execution and delivery of any Supplement,
a
copy thereof; and
(h) Requested
Information -- with reasonable promptness, such
other data and information relating to the business,
operations,
affairs, financial condition, assets or properties of the Company
or
any of its Subsidiaries or relating to the ability of the Company
to
perform its obligations hereunder and under the Notes as from time
to
time may be reasonably requested by any such holder of Notes or
such
information regarding the Company required to satisfy the
requirements
of 17 C.F.R. Section 230.144A, as amended from time to time, in
connection with any contemplated transfer of the Notes.
Notwithstanding the foregoing, in the event that one or more
Unrestricted Subsidiaries shall either (i) own more than 10% of the
consolidated
total assets of the Company and its Subsidiaries or (ii) account
for more than
10% of the consolidated gross revenues of the Company and its
Subsidiaries,
determined in each case in accordance with GAAP, then, within the
respective
periods provided in Section 7.1(a) and (b) above, the Company shall
deliver to
each holder of Notes that is an Institutional Investor, unaudited
financial
statements of the character and for the dates and periods as in
said Sections
7.1(a) and (b) covering such group of Unrestricted Subsidiaries (on
a
consolidated basis), together with a consolidating statement
reflecting
eliminations or adjustments required to reconcile the financial
statements of
such group of Unrestricted Subsidiaries to the financial statements
delivered
pursuant to Sections 7.1(a) and (b).
Section 7.2 Officer's
Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or
Section 7.1(b)
shall be accompanied by a certificate of a Senior Financial Officer
of the
Company setting forth:
(a) Covenant
Compliance -- the information (including
reasonably detailed calculations) required in order to
establish
whether the Company was in compliance with the requirements of
Section
10.1 through Section 10.3, inclusive, and Section 10.5 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
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<PAGE>
(b) Event of Default
-- a statement that such Senior
Financial Officer has reviewed the relevant terms hereof and has
made,
or caused to be made, under his or her supervision, a review of
the
transactions and conditions of the Company and its Subsidiaries
from
the beginning of the quarterly or annual period covered by the
statements then being furnished to the date of the certificate and
that
such review shall not have disclosed the existence during such
period
of any condition or event that constitutes a Default or an Event
of
Default or, if any such condition or event existed or exists
specifying
the nature and period of existence thereof and what action the
Company
shall have taken or proposes to take with respect thereto.
Section 7.3
Visitation. The Company shall permit the representatives
of each holder of Notes that is an Institutional Investor:
(a) No Default -- if
no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior
notice
to the Company, to visit the principal executive office of the
Company,
to discuss the affairs, finances and accounts of the Company and
its
Subsidiaries with the Company's officers, and (with the consent of
the
Company, which consent will not be unreasonably withheld) its
independent public accountants, and (with the consent of the
Company,
which consent will not be unreasonably withheld) to visit the
other
offices and properties of the Company and each Restricted
Subsidiary,
all at such reasonable times and as often as may be reasonably
requested in writing; and
(b) Default -- if a
Default or Event of Default then exists,
at the expense of the Company, to visit and inspect any of the
offices
or properties of the Company or any Restricted Subsidiary, to
examine
all their respective books of account, records, reports and
other
papers, to make copies and extracts therefrom, and to discuss
their
respective affairs, finances and accounts with their respective
officers and independent public accountants (and by this provision
the
Company authorizes said accountants to discuss the affairs,
finances
and accounts of the Company and its Subsidiaries), all at such
times
and
as often as may be requested.
SECTION 8. PAYMENT OF THE NOTES.
Section 8.1
Required Prepayments; Maturity.
(a) Series 2007-A
Tranche 1 Notes. The Series 2007-A Tranche
1 Notes shall not be subject to any required prepayments and the
entire
unpaid principal amount of the Series 2007-A Tranche 1 Notes
shall
become due and payable on April 2, 2017.
(b) Series 2007-A
Tranche 2 Notes. The Series 2007-A Tranche
2 Notes shall not be subject to any required prepayments and the
entire
unpaid principal amount of the Series 2007-A Tranche 2 Notes
shall
become due and payable on April 2, 2017.
(c) Required
Prepayment of Additional Notes. Each Series and
tranche, if applicable, of Additional Notes shall be subject to
required prepayments as specified in the Supplement pursuant to
which
such Series and tranche, if applicable, of Additional Notes
were
issued.
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<PAGE>
Section 8.2
Optional Prepayments.
(a) Optional
Prepayments of Fixed Rate Notes. The Company
may, at its option, upon notice as provided below, prepay at any
time
all, or from time to time any part of, any Series of Fixed Rate
Notes,
in an amount not less than 10% of the original aggregate
principal
amount of such Series of Fixed Rate Notes in the case of a
partial
prepayment, at 100% of the principal amount so prepaid, plus
accrued
and unpaid interest, plus the applicable Make-Whole Amount, if
any,
determined for the prepayment date with respect to such
principal
amount.
(b) Optional
Prepayments of Floating Rate Notes. The Company
may, at its option, upon notice as provided below, prepay at any
time
all, or from time to time any part of, any Series or tranche of
Floating Rate Notes, in an amount not less than 10% of the
original
aggregate principal amount of such Series or tranche of Floating
Rate
Notes in the case of a partial prepayment, at 100% of the
principal
amount so prepaid, plus accrued and unpaid interest, plus the
applicable
Prepayment Premium, if any, determined for the prepayment
date with respect to such principa
