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Exhibit 10.1
NORDSON
CORPORATION
NOTE PURCHASE AND
PRIVATE SHELF AGREEMENT
$50,000,000
4.98% SERIES A SENIOR
NOTES DUE FEBRUARY 22, 2013
and
$100,000,000
PRIVATE SHELF
FACILITY
Dated as of
February 22, 2008
1. AUTHORIZATION OF ISSUE OF NOTES
1
1A. Authorization of Issue of
Series A Notes
1
1B. Authorization of Issue of Shelf
Notes
2
2. PURCHASE AND SALE OF NOTES
2
2A. Purchase and Sale of Series A
Notes
2
2B. Purchase and Sale of Shelf
Notes
2
3. CONDITIONS OF CLOSING
6
3A. Certain Documents
6
3B. Opinion of Prudential’s
Special Counsel
8
3C. Opinion of Company’s
Counsel
8
3D. Representations and Warranties;
No Default; Satisfaction of Conditions
9
3E. Purchase Permitted by
Applicable Laws
9
3F. Compliance Certificates
9
3G. Payment of Fees
9
3H. Fees and Expenses
9
3I. Proceedings
9
4. PREPAYMENTS
10
4A. Scheduled Required Prepayments
10
4B. Optional Prepayment With
Yield-Maintenance Amount
10
4C. Notice of Optional Prepayment
10
4D. Application of Prepayments
10
4E. No Acquisition of Notes
10
5. AFFIRMATIVE COVENANTS
11
5A. Money Obligations
11
5B. Financial Statements
11
5C. Information Required by Rule
144A
12
5D. Financial Records
12
5E. Franchises
13
5F. ERISA Compliance
13
5G. Notice
13
5H. Environmental Compliance
13
5I. Pari Passu Ranking
14
6. NEGATIVE COVENANTS
14
6A. Financial Covenants
14
6B. Indebtedness
14
6C. Liens
15
6D. Investments and Loans
16
6E. Merger and Sale of Assets
17
6F. Acquisitions
18
6G. Affiliate Transactions
18
6H. Restricted Payments
18
6I. Restrictive Agreements
18
6J. Guaranties of Payment; Guaranty
Under Material Indebtedness Agreement
19
6K. Terrorism Sanctions Regulations
19
6L. Most Favored Lender
19
7. EVENTS OF DEFAULT
21
7A. Acceleration
21
7B. Rescission of Acceleration
23
7C. Notice of Acceleration or
Rescission
23
7D. Other Remedies
23
8. REPRESENTATIONS, COVENANTS AND WARRANTIES
24
8A(1). Organization; Subsidiary
Preferred Equity
24
8A(2). Power and Authority
24
8B. Financial Statements
24
8C. Actions Pending
25
8D. Outstanding Indebtedness
25
8E. Title to Properties
25
8F. Taxes
26
8G. Conflicting Agreements and
Other Matters
26
8H. Offering of Notes
26
8I. Use of Proceeds
26
8J. ERISA
27
8K. Governmental Consent
27
8L. Compliance with Environmental
and Other Laws
27
8M. Regulatory Status
28
8N. Permits and Other Operating
Rights
28
8O. Rule 144A
28
8P. Absence of Financing
Statements, etc.
28
8Q. Foreign Assets Control
Regulations, Etc.
28
8R. Disclosure
29
8S. Hostile Tender Offers
29
9. REPRESENTATIONS OF EACH PURCHASER
29
9A. Nature of Purchase
29
9B. Source of Funds
29
10. DEFINITIONS; ACCOUNTING MATTERS
31
10A. Yield-Maintenance Terms
31
10B. Other Terms
32
10C. Accounting and Legal
Principles, Terms and Determinations
45
11. MISCELLANEOUS
46
11A. Note Payments
46
11B. Expenses
46
11C. Consent to Amendments
47
11D. Form, Registration, Transfer
and Exchange of Notes; Lost Notes
48
11E. Persons Deemed Owners;
Participations
49
11F. Survival of Representations and
Warranties; Entire Agreement
49
11G. Successors and Assigns
49
11H. Independence of Covenants
49
11I. Notices
49
11J. Payments Due on Non-Business
Days
50
11K. Satisfaction Requirement
50
11L. GOVERNING LAW
50
11M. SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL
50
11N. Severability
51
11O. Descriptive Headings; Advice of
Counsel; Interpretation; Time of the Essence51
11P. Counterparts; Facsimile or
Electronic Signatures
52
11Q. Severalty of Obligations
52
11R. Independent Investigation
52
11S. Transaction References
52
11T. Directly or Indirectly
52
11U. Binding Agreement
52
1
EXHIBITS AND
SCHEDULES
PURCHASER SCHEDULE
INFORMATION SCHEDULE
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EXHIBIT A-1
EXHIBIT A-2
EXHIBIT B
EXHIBIT C
EXHIBIT D
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FORM OF SERIES A NOTE
FORM OF SHELF NOTE
FORM OF DISBURSEMENT DIRECTION LETTER
FORM OF REQUEST FOR PURCHASE
FORM OF CONFIRMATION OF ACCEPTANCE |
EXHIBIT E-1 — FORM OF
OPINION OF COMPANY COUNSEL (SERIES A NOTES)
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EXHIBIT E-2
EXHIBIT F
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FORM OF OPINION OF COMPANY COUNSEL
(SHELF NOTES)
FORM OF COMPLIANCE CERTIFICATE |
SCHEDULE 8A(1)
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—SUBSIDIARIES |
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SCHEDULE 8G
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AGREEMENTS RESTRICTING
INDEBTEDNESS |
2
NORDSON
CORPORATION
28601 Clemens
Road
Westlake, Ohio
44145
As of
February 22, 2008
Prudential Investment
Management, Inc. (“ Prudential” )
Each of the Purchasers
named in
the
Purchaser Schedule attached
hereto as
purchasers of Series A Notes
(the
“ Initial Purchasers” )
Each other Prudential
Affiliate (as hereinafter
defined)
which becomes bound by certain
provisions
of this Agreement as hereinafter
provided
c/o Prudential Capital
Group
Two Prudential Plaza,
Suite 5600
Chicago, Illinois 60601
Ladies and Gentlemen:
The
undersigned, Nordson Corporation, an Ohio corporation (herein
called the “ Company” ), hereby agrees with you
as set forth below. Reference is made to paragraph 10 hereof for
definitions of capitalized terms used herein and not otherwise
defined herein.
1. AUTHORIZATION OF ISSUE OF NOTES.
1A.
Authorization of Issue of Series A Notes. The Company will
authorize the issue of its senior promissory notes (the “
Series A Notes” ) in the aggregate principal
amount of $50,000,000, to be dated the date of issue thereof, to
mature February 22, 2013 to bear interest on the unpaid
balance thereof from the date thereof until the principal thereof
shall have become due and payable at the rate of 4.98% per annum
(provided that, during any period when an Event of Default shall be
in existence, at the election of the Required Holder(s) of the
Series A Notes the outstanding principal balance of the
Series A Notes shall bear interest from and after the date of
such Event of Default and until such Event of Default ceases to be
in existence at the rate per annum from time to time equal to the
Default Rate) and on overdue payments at the rate per annum from
time to time equal to the Default Rate, and to be substantially in
the form of Exhibit A-1 attached hereto. The terms “
Series A Note” and “ Series A
Notes” as used herein shall include each Series A
Note delivered pursuant to any provision of this Agreement and each
Series A Note delivered in substitution or exchange for any
other Series A Note pursuant to any such provision.
1B.
Authorization of Issue of Shelf Notes. The Company will
authorize the issue of its additional senior promissory notes (the
“ Shelf Notes” ) in the aggregate principal
amount of $100,000,000, to be dated the date of issue thereof, to
mature, in the case of each Shelf Note so issued, no more than
12 years after the date of original issuance thereof, to have
an average life, in the case of each Shelf Note so issued, of no
more than 10 years after the date of original issuance
thereof, to bear interest on the unpaid balance thereof from the
date thereof at the rate per annum, and to have such other
particular terms, as shall be set forth, in the case of each Shelf
Note so issued, in the Confirmation of Acceptance with respect to
such Shelf Note delivered pursuant to paragraph 2B(5), and to be
substantially in the form of Exhibit A-2 attached hereto. The
terms “ Shelf Note” and “ Shelf
Notes” as used herein shall include each Shelf Note
delivered pursuant to any provision of this Agreement and each
Shelf Note delivered in substitution or exchange for any such Shelf
Note pursuant to any such provision. The terms “
Note” and “ Notes” as used herein
shall include each Series A Note and each Shelf Note. Notes
which have (i) the same final maturity, (ii) the same
principal prepayment dates, (iii) the same principal
prepayment amounts (as a percentage of the original principal
amount of each Note), (iv) the same interest rate,
(v) the same interest payment periods and (vi) the same
date of issuance (which, in the case of a Note issued in exchange
for another Note, shall be deemed for these purposes the date on
which such Note’s ultimate predecessor Note was issued), are
herein called a “ Series” of Notes.
2. PURCHASE AND SALE OF NOTES.
2A.
Purchase and Sale of Series A Notes. The Company hereby
agrees to sell to each Initial Purchaser and, subject to the terms
and conditions herein set forth, each Initial Purchaser agrees to
purchase from the Company the aggregate principal amount of
Series A Notes set forth opposite such Initial
Purchaser’s name on the Purchaser Schedule attached hereto at
100% of such aggregate principal amount. On February 22, 2008
or any other date prior to February 22, 2008 upon which the
Company and the Initial Purchasers may agree (herein called the
“ Series A Closing Day” ), the Company will
deliver to each Initial Purchaser at the offices of Schiff Hardin
LLP, at 6600 Sears Tower, Chicago, Illinois, one or more
Series A Notes registered in such Initial Purchaser’s
name (or, if specified in the Purchaser Schedule, in the name of
the nominee(s) for such Initial Purchaser specified in the
Purchaser Schedule), evidencing the aggregate principal amount of
Series A Notes to be purchased by such Initial Purchaser and in the
denomination or denominations specified with respect to such
Initial Purchaser in the Purchaser Schedule attached hereto,
against payment of the purchase price thereof by transfer of
immediately available funds for credit to the account or accounts
as shall be specified in a letter on the Company’s
letterhead, in substantially the form of Exhibit B attached
hereto, from the Company to the Initial Purchasers delivered prior
to the Series A Closing Day.
2B.
Purchase and Sale of Shelf Notes.
2B(1).
Facility. Prudential is willing to consider, in its sole
discretion and within limits which may be authorized for purchase
by Prudential Affiliates from time to time, the purchase of Shelf
Notes pursuant to this Agreement. The willingness of Prudential to
consider such purchase of Shelf Notes is herein called the “
Facility” . At any time, the aggregate principal
amount of Shelf Notes stated in paragraph 1B, minus the aggregate
principal amount of Shelf Notes purchased and sold pursuant to this
Agreement prior to such time, minus the aggregate principal amount
of Accepted Notes (as hereinafter defined) which have not yet been
purchased and sold hereunder prior to such time, is herein called
the “ Available Facility Amount” at such time.
NOTWITHSTANDING THE WILLINGNESS OF PRUDENTIAL TO CONSIDER
PURCHASES OF SHELF NOTES BY PRUDENTIAL AFFILIATES, THIS AGREEMENT
IS ENTERED INTO ON THE EXPRESS UNDERSTANDING THAT NEITHER
PRUDENTIAL NOR ANY PRUDENTIAL AFFILIATE SHALL BE OBLIGATED TO MAKE
OR ACCEPT OFFERS TO PURCHASE SHELF NOTES, OR TO QUOTE RATES,
SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC PURCHASES OF SHELF
NOTES, AND THE FACILITY SHALL IN NO WAY BE CONSTRUED AS A
COMMITMENT BY PRUDENTIAL OR ANY PRUDENTIAL AFFILIATE.
2B(2).
Issuance Period. Shelf Notes may be issued and sold pursuant to
this Agreement until the earlier of (i) the third anniversary
of the date of this Agreement (or if the date of such anniversary
is not a Business Day, the Business Day next preceding such
anniversary), (ii) the 30 th day after Prudential
shall have given to the Company, or the Company shall have given to
Prudential, a written notice stating that it elects to terminate
the issuance and sale of Shelf Notes pursuant to this Agreement (or
if such 30 th day is not a Business Day, the Business
Day next preceding such 30 th day), (iii) the last
Closing Day after which there is no Available Facility Amount,
(iv) the termination of the Facility under paragraph 7A of
this Agreement, and (v) the acceleration of any Note under
paragraph 7A of this Agreement. The period during which Shelf Notes
may be issued and sold pursuant to this Agreement is herein called
the “ Issuance Period” .
2B(3).
Request for Purchase. The Company may from time to time during
the Issuance Period make requests for purchases of Shelf Notes
(each such request being herein called a “ Request for
Purchase” ). Each Request for Purchase shall be made to
Prudential by facsimile transmission or overnight delivery service,
and shall (i) specify the aggregate principal amount of Shelf
Notes covered thereby, which shall not be less than $10,000,000 and
not be greater than the Available Facility Amount at the time such
Request for Purchase is made, (ii) specify the principal
amounts, final maturities (which shall be no more than
12 years from the date of issuance), average life (which shall
be no more than 10 years from the date of issuance), principal
prepayment dates (if any) and amounts and interest payment periods
(quarterly or semi-annually in arrears) of the Shelf Notes covered
thereby, (iii) specify the use of proceeds of such Shelf
Notes, (iv) specify the proposed day for the closing of the
purchase and sale of such Shelf Notes, which shall be a Business
Day during the Issuance Period not less than 10 days and not
more than 25 days after the making of such Request for
Purchase, (v) specify the number of the account and the name
and address of the depository institution to which the purchase
prices of such Shelf Notes are to be transferred on the Closing Day
for such purchase and sale, (vi) certify that the
representations and warranties contained in paragraph 8 are true on
and as of the date of such Request for Purchase and that there
exists on the date of such Request for Purchase no Event of Default
or Default and (vii) be substantially in the form of
Exhibit C attached hereto. Each Request for Purchase shall be
in writing and shall be deemed made when received by
Prudential.
2B(4).
Rate Quotes. Not later than five Business Days after the
Company shall have given Prudential a Request for Purchase pursuant
to paragraph 2B(3), Prudential may, but shall be under no
obligation to, provide to the Company by telephone or facsimile
transmission, in each case between 9:30 A.M. and 1:30 P.M. New York
City local time (or such later time as Prudential may elect)
interest rate quotes for the several principal amounts, maturities,
principal prepayment schedules and interest payment periods of
Shelf Notes specified in such Request for Purchase. Each quote
shall represent the interest rate per annum payable on the
outstanding principal balance of such Shelf Notes at which a
Prudential Affiliate or Affiliates would be willing to purchase
such Shelf Notes at 100% of the principal amount thereof.
2B(5).
Acceptance. Within the Acceptance Window with respect to any
interest rate quotes provided pursuant to paragraph 2B(4), the
Company may, subject to paragraph 2B(6), elect to accept such
interest rate quotes as to not less than $10,000,000 aggregate
principal amount of the Shelf Notes specified in the related
Request for Purchase. Such election shall be made by an Authorized
Officer of the Company notifying Prudential by telephone or
facsimile transmission within the Acceptance Window that the
Company elects to accept such interest rate quotes, specifying the
Shelf Notes (each such Shelf Note being herein called an “
Accepted Note” ) as to which such acceptance (herein
called an “ Acceptance” ) relates. The day the
Company notifies Prudential of an Acceptance with respect to any
Accepted Notes is herein called the “ Acceptance
Day” for such Accepted Notes. Any interest rate quotes as
to which Prudential does not receive an Acceptance within the
Acceptance Window shall expire, and no purchase or sale of Shelf
Notes hereunder shall be made based on such expired interest rate
quotes. Subject to paragraph 2B(6) and the other terms and
conditions hereof, the Company agrees to sell to a Prudential
Affiliate or Affiliates, and Prudential agrees to cause the
purchase by a Prudential Affiliate or Affiliates of, the Accepted
Notes at 100% of the principal amount of such Notes. As soon as
practicable following the Acceptance Day, the Company and each
Prudential Affiliate which is to purchase any such Accepted Notes
will execute a confirmation of such Acceptance substantially in the
form of Exhibit D attached hereto (herein called a “
Confirmation of Acceptance” ). If the Company should
fail to execute and return to Prudential within three Business Days
following the Company’s receipt thereof a Confirmation of
Acceptance with respect to any Accepted Notes, Prudential or any
Prudential Affiliate may at its election at any time prior to
Prudential’s receipt thereof cancel the closing with respect
to such Accepted Notes by so notifying the Company in writing.
2B(6).
Market Disruption. Notwithstanding the provisions of paragraph
2B(5), if Prudential shall have provided interest rate quotes
pursuant to paragraph 2B(4) and thereafter prior to the time an
Acceptance with respect to such quotes shall have been notified to
Prudential in accordance with paragraph 2B(5) the domestic market
for U.S. Treasury securities or other financial instruments shall
have closed or there shall have occurred a general suspension,
material limitation, or significant disruption of trading in
securities generally on the New York Stock Exchange or in the
domestic market for U.S. Treasury securities or other financial
instruments, then such interest rate quotes shall expire, and no
purchase or sale of Shelf Notes hereunder shall be made based on
such expired interest rate quotes. If the Company thereafter
notifies Prudential of the Acceptance of any such interest rate
quotes, such Acceptance shall be ineffective for all purposes of
this Agreement, and Prudential shall promptly notify the Company
that the provisions of this paragraph 2B(6) are applicable with
respect to such Acceptance.
2B(7).
Facility Closings. Not later than 11:30 A.M. (New York
City local time) on the Closing Day for any Accepted Notes, the
Company will deliver to each Purchaser listed in the Confirmation
of Acceptance relating thereto at the offices of Prudential Capital
Group, 180 North Stetson Street, Suite 5600, Chicago, Illinois
60601, Attention: Law Department, or at such other place as
Prudential may have directed, the Accepted Notes to be purchased by
such Purchaser in the form of one or more Notes in authorized
denominations as such Purchaser may request for each Series of
Accepted Notes to be purchased on the Closing Day, dated the
Closing Day and registered in such Purchaser’s name (or in
the name of its nominee), against payment of the purchase price
thereof by transfer of immediately available funds for credit to
the Company’s account specified in the Request for Purchase
of such Notes. If the Company fails to tender to any Purchaser the
Accepted Notes to be purchased by such Purchaser on the scheduled
Closing Day for such Accepted Notes as provided above in this
paragraph 2B(7), or any of the conditions specified in paragraph 3
shall not have been fulfilled by the time required on such
scheduled Closing Day, the Company shall, prior to 1:00 P.M., New
York City local time, on such scheduled Closing Day notify
Prudential (which notification shall be deemed received by each
Purchaser) in writing whether (i) such closing is to be
rescheduled (such rescheduled date to be a Business Day during the
Issuance Period not less than one Business Day and not more than 10
Business Days after such scheduled Closing Day (the “
Rescheduled Closing Day” )) and certify to Prudential
(which certification shall be for the benefit of each Purchaser)
that the Company reasonably believes that it will be able to comply
with the conditions set forth in paragraph 3 on such Rescheduled
Closing Day and that the Company will pay the Delayed Delivery Fee
in accordance with paragraph 2B(8)(ii) or (ii) such closing is
to be canceled. In the event that the Company shall fail to give
such notice referred to in the preceding sentence, Prudential (on
behalf of each Purchaser) may at its election, at any time after
1:00 P.M., New York City local time, on such scheduled Closing Day,
notify the Company in writing that such closing is to be canceled.
Notwithstanding anything to the contrary appearing in this
Agreement, the Company may not elect to reschedule a closing with
respect to any given Accepted Notes on more than one occasion,
unless Prudential shall have otherwise consented in writing.
2B(8).
Fees.
2B(8)(i). Issuance Fee. The Company will pay to each
Purchaser in immediately available funds a fee (herein called the
“ Issuance Fee” ) on each Closing Day (other
than the Series A Closing Day) in an amount equal to 0.10% of
the aggregate principal amount of Shelf Notes sold to such
Purchaser on such Closing Day.
2B(8)(ii). Delayed Delivery Fee. If the closing of the
purchase and sale of any Accepted Note is delayed for any reason
beyond the original Closing Day for such Accepted Note, the Company
will pay to the Purchaser which shall have agreed to purchase such
Accepted Note (a) on the Cancellation Date or actual closing
date of such purchase and sale and (b) if earlier, the next
Business Day following 90 days after the Acceptance Day for
such Accepted Note and on each Business Day following 90 days
after the prior payment hereunder, a fee (herein called the “
Delayed Delivery Fee” ) calculated as follows:
(BEY – MMY) X
DTS/360 X PA
where
“BEY” means Bond Equivalent Yield, i.e., the
bond equivalent yield per annum of such Accepted Note;
“MMY” means Money Market Yield, i.e., the yield
per annum on a commercial paper investment of the highest quality
selected by Prudential and having a maturity date or dates the same
as, or closest to, the Rescheduled Closing Day or Rescheduled
Closing Days for such Accepted Note (a new alternative investment
being selected by Prudential each time such closing is delayed);
“DTS” means Days to Settlement, i.e., the number
of actual days elapsed from and including the original Closing Day
for such Accepted Note (in the case of the first such payment with
respect to such Accepted Note) or from and including the date of
the next preceding payment (in the case of any subsequent Delayed
Delivery Fee payment with respect to such Accepted Note) to but
excluding the date of such payment; and “PA”
means Principal Amount, i.e., the principal amount of the Accepted
Note for which such calculation is being made. In no case shall the
Delayed Delivery Fee be less than zero. Nothing contained herein
shall obligate any Purchaser to purchase any Accepted Note on any
day other than the Closing Day for such Accepted Note, as the same
may be rescheduled from time to time in compliance with paragraph
2B(7).
2B(8)(iii). Cancellation Fee. If the Company at any time
notifies Prudential in writing that the Company is canceling the
closing of the purchase and sale of any Accepted Note, or if
Prudential notifies the Company in writing under the circumstances
set forth in the last sentence of paragraph 2B(5) or the
penultimate sentence of paragraph 2B(7) that the closing of the
purchase and sale of such Accepted Note is to be canceled, or if
the closing of the purchase and sale of such Accepted Note is not
consummated on or prior to the last day of the Issuance Period (the
date of any such notification or the last day of the Issuance
Period, as the case may be, being herein called the “
Cancellation Date” ), the Company will pay to the
Purchaser which shall have agreed to purchase such Accepted Note in
immediately available funds an amount (the “ Cancellation
Fee” ) calculated as follows:
PI X PA
where
“PI” means Price Increase, i.e., the quotient
(expressed in decimals) obtained by dividing (a) the excess of
the ask price (as determined by Prudential) of the Hedge Treasury
Note(s) on the Cancellation Date over the bid price (as determined
by Prudential) of the Hedge Treasury Notes(s) on the Acceptance Day
for such Accepted Note by (b) such bid price; and
“PA” has the meaning ascribed to it in paragraph
2B(8)(ii). The foregoing bid and ask prices shall be as reported by
TradeWeb LLC (or, if such data for any reason ceases to be
available through TradeWeb LLC, any publicly available source of
similar market data). Each price shall be based on a U.S. Treasury
security having a part value of $100.00 and shall be rounded to the
second decimal place. In no case shall the Cancellation Fee be less
than zero.
3. CONDITIONS OF CLOSING. Each Purchaser’s
obligation to purchase and pay for the Notes to be purchased by
such Purchaser hereunder on any Closing Day is subject to the
satisfaction, on or before such Closing Day, of the following
conditions:
3A.
Certain Documents. Such Purchaser shall have received original
counterparts or, if satisfactory to such Purchaser, certified or
other copies of all of the following, each duly executed and
delivered by the party or parties thereto, in form and substance
satisfactory to such Purchaser dated the date of the applicable
Closing Day unless otherwise indicated, and, on the applicable
Closing Day, in full force and effect with no event having occurred
and being then continuing that would constitute a default
thereunder or constitute or provide the basis for the termination
thereof:
(i) The
Note(s) to be purchased by such Purchaser on such Closing Day in
the form of Exhibit A-1 or Exhibit A-2 hereto, as
applicable;
(ii) a
Guaranty Agreement in form satisfactory to such Purchaser (herein,
together with any other Guarantee Agreement, as the same may be
amended, supplemented, restated or otherwise modified from time to
time, collectively called the “Guaranty
Agreements” and individually called a “Guaranty
Agreement” ) made by each Subsidiary which is a Guarantor
with respect to Indebtedness outstanding under the Primary Credit
Facility or any other Material Indebtedness Agreement of the
Company, and which Subsidiary is not, as of such Closing Day, a
party to a Guaranty Agreement, if any, and a Confirmation of
Guaranty Agreement in form satisfactory to such Purchaser (herein,
as the same may be amended, supplemented, restated or otherwise
modified from time to time, collectively called the
“Confirmations of Guaranty Agreement” and
individually called a “Confirmation of Guaranty
Agreement” ) made by each other Person which is, as of
such Closing Day, a Guarantor of Payment, if any;
(iii) a
Secretary’s Certificate signed by the Secretary or Assistant
Secretary and one other officer of the Company and each Guarantor
of Payment, if any, certifying, among other things (a) as to
the name, titles and true signatures of the officers of the Company
or such Guarantor of Payment authorized to sign this Agreement, the
Notes being delivered on such Closing Day, any Guaranty Agreements
or Confirmations of Guaranty Agreement, as applicable, being
delivered on such Closing Day and the other documents to be
delivered in connection with this Agreement, (b) that attached
thereto is a true, accurate and complete copy of the certificate of
incorporation or other formation document of the Company or such
Guarantor of Payment, as applicable, certified by the Secretary of
State of the state of organization of the Company or such Guarantor
of Payment, as applicable, as of a recent date, (c) that
attached thereto is a true, accurate and complete copy of the
by-laws, operating agreement or other organizational document of
the Company or such Guarantor of Payment, as applicable, which were
duly adopted and are in effect as of such Closing Day and have been
in effect immediately prior to and at all times since the adoption
of the resolutions referred to in clause (d) below,
(d) that attached thereto is a true, accurate and complete
copy of the resolutions of the board of directors or other managing
body of the Company or such Guarantor of Payment, as applicable,
duly adopted at a meeting or by unanimous written consent of such
board of directors or other managing body, authorizing the
execution, delivery and performance of this Agreement, the Notes
being delivered on such Closing Day, any Guaranty Agreements or
Confirmations of Guaranty Agreement being delivered on such Closing
Day, as applicable, and the other documents to be delivered in
connection with this Agreement, and that such resolutions have not
been amended, modified, revoked or rescinded, and are in full force
and effect and are the only resolutions of the shareholders,
partners or members of the Company or such Guarantor of Payment or
of such board of directors or other managing body or any committee
thereof relating to the subject matter thereof, (e) that this
Agreement, the Notes being delivered on such Closing Day, any
Guaranty Agreements or Confirmations of Guaranty Agreement, as
applicable, and the other documents executed and delivered to such
Purchaser by the Company or such Guarantor of Payment are in the
form approved by its board of directors or other managing body in
the resolutions referred to in clause (d), above, and (f) that
no dissolution or liquidation proceedings as to the Company or any
Subsidiary have been commenced or are contemplated; provided,
however, that with respect to any Closing Day subsequent to the
Series A Closing Day, if none of the matters certified to in
the certificate delivered by the Company or any Guarantor of
Payment under this clause (iii) on any prior Closing Day have
changed and the resolutions referred to in sub-clause (d) of
this clause (iii) authorize the execution and delivery of the
Notes, any Guaranty Agreement and any Confirmation of Guaranty
Agreement, as applicable, being delivered on such subsequent
Closing Day, then the Company or such Guarantor of Payment may, in
lieu of the certificate described above, deliver a
Secretary’s Certificate signed by its Secretary or Assistant
Secretary certifying that there have been no changes to the matters
certified to in the certificate delivered by the Company or such
Guarantor of Payment delivered on such prior Closing Day under this
clause (iii);
(iv) a
certificate of corporate or other type of entity good standing for
the Company from the Secretary of State of the state of
organization of the Company dated as of a recent date;
(v) certified copies of Requests for Information or Copies
(Form UCC-11) or equivalent reports listing all effective financing
statements which name the Company (under its present name and
previous names used) as debtor and which are filed in the office of
the Secretary of State (or such other office which is, under the
Uniform Commercial Code as in effect in the applicable
jurisdiction, the proper office in which to file a financing
statement under Section 9-501(a)(2) of such Uniform Commercial
Code) of the location (as determined under the Uniform Commercial
Code) of the Company, together with copies of such financing
statements;
(vi) such
other certificates, documents and agreements as such Purchaser may
reasonably request.
3B.
Opinion of Prudential’s Special Counsel. Such Purchaser
shall have received from Scott Barnett, Vice President and
Corporate Counsel of Prudential, or such other counsel who is
acting as special counsel for such Purchaser in connection with
this transaction, a favorable opinion satisfactory to such
Purchaser as to such matters incident to the matters herein
contemplated as it may reasonably request.
3C.
Opinion of Company’s Counsel. Such Purchaser shall have
received from Kahn Kleiman, LPA, special counsel for the Company
(or such other counsel designated by the Company and acceptable to
such Purchaser), a favorable opinion satisfactory to such
Purchaser, dated such Closing Day, and substantially in the form of
Exhibit E-1 attached hereto (in the case of the Series A
Notes) or Exhibit E-2 attached hereto (in the case of any
Shelf Notes) and as to such other matters as such Purchaser may
reasonably request. The Company, by its execution hereof, hereby
requests and authorizes such special counsel to render such
opinions and to allow such Purchaser to rely on such opinions,
agrees that the issuance and sale of any Notes will constitute a
reconfirmation of such request and authorization, and understands
and agrees that each Purchaser receiving such an opinion will and
is hereby authorized to rely on such opinion.
3D.
Representations and Warranties; No Default; Satisfaction of
Conditions. The representations and warranties contained in
paragraph 8 shall be true on and as of such Closing Day, both
before and immediately after giving effect to the issuance of the
Notes to be issued on such Closing Day and to the consummation of
any other transactions contemplated hereby; there shall exist on
such Closing Day no Event of Default or Default, both before and
immediately after giving effect to the issuance of the Notes to be
issued on such Closing Day and to the consummation of any other
transactions contemplated hereby; the Company shall have performed
all agreements and satisfied all conditions required under this
Agreement to be performed or satisfied on or before such Closing
Day; and the Company shall have delivered to such Purchaser an
Officer’s Certificate, dated such Closing Day, to each such
effect.
3E.
Purchase Permitted by Applicable Laws. The purchase of and
payment for the Notes to be purchased by such Purchaser on such
Closing Day on the terms and conditions herein provided (including
the use of the proceeds of such Notes by the Company) shall not
violate any applicable law or governmental regulation (including,
without limitation, Section 5 of the Securities Act or
Regulation T, U or X of the Board of Governors of the Federal
Reserve System) and shall not subject such Purchaser to any tax,
penalty, liability or other onerous condition under or pursuant to
any applicable law or governmental regulation, and such Purchaser
shall have received such certificates or other evidence as it may
request to establish compliance with this condition. All necessary
authorizations, consents, approvals, exceptions or other actions by
or notices to or filings with any court or administrative or
governmental body or other Person required in connection with the
execution, delivery and performance of this Agreement and the Notes
to be issued on such Closing Day or the consummation of the
transactions contemplated hereby or thereby shall have been issued
or made, shall be final and in full force and effect and shall be
in form and substance satisfactory to such Purchaser.
3F.
Compliance Certificates. The Company shall have delivered to
such Purchaser such certificates, in form and substance
satisfactory to such Purchaser, demonstrating that the issuance of
the Notes on such Closing Day is in compliance with the provisions
of the Primary Credit Facility and any other Material Indebtedness
Agreement as such Purchaser shall request, showing computations in
reasonable detail.
3G.
Payment of Fees. The Company shall have paid to such Purchaser
in immediately available funds any fees due it pursuant to or in
connection with this Agreement, including any Issuance Fee due
pursuant to paragraph 2B(8)(i) and any Delayed Delivery Fee due
pursuant to paragraph 2B(8)(ii).
3H.
Fees and Expenses. Without limiting the provisions of paragraph
11B hereof, the Company shall have paid the reasonable fees,
charges and disbursements of any special counsel to the Purchasers
in connection with this Agreement or the transactions contemplated
hereby in connection with the issuance Series A Notes.
3I.
Proceedings. All corporate and other proceedings taken or to be
taken in connection with the transactions contemplated hereby and
all documents incident thereto shall be satisfactory in substance
and form to such Purchaser, and such Purchaser shall have received
all such counterpart originals or certified or other copies of such
documents as it may reasonably request.
4. PREPAYMENTS. The Series A Notes shall be
subject to prepayment only with respect to the optional prepayments
permitted by paragraph 4B and upon acceleration pursuant to
paragraph 7A. Any Shelf Notes shall be subject to prepayment
only with respect to the required prepayments specified in
paragraph 4(A)(2), if any, the optional prepayments permitted by
paragraph 4B, and upon acceleration pursuant to paragraph 7A.
4A.
Scheduled Required Prepayments.
4A(1).
No Scheduled Required Prepayments of Series A Notes. The
Series A Notes shall not be subject to any scheduled required
prepayments. The entire outstanding principal amount of the
Series A Notes, together with any accrued and unpaid interest
thereon, shall become due on February 22, 2013, the maturity date
of the Series A Notes.
4A(2).
Scheduled Required Prepayments of Shelf Notes. Each Series of
Shelf Notes shall be subject to required prepayments, if any, set
forth in the Notes of such Series.
4B.
Optional Prepayment With Yield-Maintenance Amount. The Notes of
each Series shall be subject to prepayment, in whole at any time or
from time to time in part (in integral multiples of $1,000,000 and
in a minimum amount of $5,000,000 on any one occurrence), at the
option of the Company, at 100% of the principal amount so prepaid
plus interest thereon to the prepayment date and the
Yield-Maintenance Amount, if any, with respect to each such Note.
Any partial prepayment of a Series of Notes pursuant to this
paragraph 4B shall be applied in satisfaction of required payments
of principal thereof (including the required payment of principal
due upon the maturity thereof) in inverse order of their scheduled
due dates.
4C.
Notice of Optional Prepayment. The Company shall give the
holder of each Note of a Series to be prepaid pursuant to paragraph
4B irrevocable written notice of such prepayment not less than 10
Business Days prior to the prepayment date (which shall be a
Business Day), specifying such prepayment date and the aggregate
principal amount of the Notes of such Series, and the Notes of such
Series held by such holder, to be prepaid on such date, and stating
that such prepayment is to be made pursuant to paragraph 4B. Notice
of prepayment having been given as aforesaid, the principal amount
of the Notes specified in such notice, together with interest
thereon to the prepayment date and together with the
Yield-Maintenance Amount, if any, with respect thereto, shall
become due and payable on such prepayment date. The Company shall,
on or before the day on which it gives written notice of any
prepayment pursuant to paragraph 4B, give telephonic notice of the
principal amount of the Notes to be prepaid and the prepayment date
to each Significant Holder which shall have designated a recipient
of such notices in the Purchaser Schedule attached hereto or the
applicable Confirmation of Acceptance or by notice in writing to
the Company.
4D.
Application of Prepayments. In the case of each prepayment of
less than the entire outstanding principal amount of all Notes of
any Series pursuant to paragraphs 4A(2) or 4B, the principal amount
so prepaid shall be allocated pro rata to all Notes of such Series
at the time outstanding in proportion to the respective outstanding
principal amounts thereof.
4E. No
Acquisition of Notes. The Company shall not, and shall not
permit any of its Subsidiaries or Affiliates to, prepay or
otherwise retire in whole or in part prior to their stated final
maturity (other than by prepayment pursuant to paragraph 4A(2) or
4B or upon acceleration of such final maturity pursuant to
paragraph 7A), or purchase or otherwise acquire, directly or
indirectly, Notes of any Series held by any holder unless the
Company or such Subsidiary or Affiliate shall have offered to
prepay or otherwise retire or purchase or otherwise acquire, as the
case may be, the same proportion of the aggregate principal amount
of Notes of such Series held by each other holder of Notes of such
Series at the time outstanding upon the same terms and conditions.
Any Notes so prepaid or otherwise retired or purchased or otherwise
acquired by the Company or any of its Subsidiaries or Affiliates
shall not be deemed to be outstanding for any purpose under this
Agreement.
5. AFFIRMATIVE COVENANTS. During the Issuance Period
and so long thereafter as any Note is outstanding and unpaid, the
Company covenants as follows:
5A.
Money Obligations. The Company covenants that it will, and
shall cause each of its Subsidiaries to, pay in full (a) prior
in each case to the date when penalties would attach, all taxes,
assessments and governmental charges and levies (except only those
so long as and to the extent that the same shall be contested in
good faith by appropriate and timely proceedings and for which
adequate reserves have been established in accordance with GAAP)
for which it may be or become liable or to which any or all of its
properties may be or become subject and the failure to pay would
have a Material Adverse Effect; (b) all of its wage
obligations to its employees in compliance with the Fair Labor
Standards Act (29 U.S.C. §§206-207) or any comparable
provisions and the failure to pay would have a Material Adverse
Effect; and (c) all of its other obligations calling for the
payment of money (except only those so long as and to the extent
that the same shall be contested in good faith and for which
adequate reserves have been established in accordance with GAAP)
before such payment becomes overdue and the failure to pay
(i) would constitute a Default or Event of Default hereunder
or (ii) have a Material Adverse Effect.
5B.
Financial Statements. The Company covenants that it will
deliver to each Significant Holder in duplicate:
(i) within
forty-five (45) days after the end of each of the first three
(3) quarter-annual periods of each fiscal year of the Company,
balance sheets of the Company as of the end of such period and
statements of income (loss), stockholders’ equity and cash
flow for the quarter and fiscal year to date periods, all prepared
on a Consolidated basis, in accordance with GAAP, and in form and
detail satisfactory to the Required Holders and certified by a
Financial Officer of the Company; provided that delivery of the
Company’s quarterly report for any fiscal quarter of the
Company on Form 10-Q as filed with the SEC shall satisfy the
requirements of this subpart (i);
(ii) within
ninety (90) days after the end of each fiscal year of the
Company, (a) an annual audit report of the Company for that
year prepared on a Consolidated and consolidating (but only as to
the Company, the Domestic Subsidiaries and the Foreign
Subsidiaries) basis, in accordance with GAAP, and in form and
detail satisfactory to the Required Holders and certified by an
independent public accountant satisfactory to the Required Holders,
which report shall include balance sheets and statements of income
(loss), stockholders’ equity and cash-flow for that period,
provided that delivery of the Company’s annual report for any
fiscal year of the Company on Form 10-K as filed with the SEC shall
satisfy the requirements of this subpart (ii)(a), and (b) a
certificate by such accountant setting forth the Defaults and
Events of Default coming to its attention during the course of its
audit or, if none, a statement to that effect;
(iii) concurrently with the delivery of the financial
statements in (i) and (ii) above, a Compliance
Certificate;
(iv) with
the delivery of the quarterly and annual financial statements in
(i) and (ii) above, a copy of any management report,
letter or similar writing furnished to the Companies by the
accountants in respect of the Companies’ systems, operations,
financial condition or properties, to the extent permitted by such
accountants and applicable law;
(v) as soon
as available, copies of all notices, reports, definitive proxy or
other statements and other documents sent by the Company to its
shareholders, to the holders of any of its debentures or bonds or
the trustee of any indenture securing the same or pursuant to which
they are issued, or sent by the Company (in final form) to any
securities exchange or over the counter authority or system, or to
the SEC or any similar federal agency having regulatory
jurisdiction over the issuance of the Company’s securities;
and
(vi) within
ten (10) days of the written request of Prudential or any
Significant Holder, such other information about the financial
condition, properties and operations of any Company as Prudential
or such Significant Holder may from time to time reasonably request
(but subject to any applicable law and, upon request of the
Company, subject to customary confidentiality provisions), which
information shall be submitted in form and detail satisfactory to
Prudential or such Significant Holder and certified by a financial
officer of the Company or Subsidiaries in question.
5C.
Information Required by Rule 144A. The Company covenants
that it will, upon the request of the holder of any Note, provide
such holder, and any qualified institutional buyer designated by
such holder, such financial and other information as such holder
may reasonably determine to be necessary in order to permit
compliance with the information requirements of Rule 144A
under the Securities Act in connection with the resale of Notes,
except at such times as the Company is subject to and in compliance
with the reporting requirements of section 13 or 15(d) of the
Exchange Act. For the purpose of this paragraph 5B, the term
“qualified institutional buyer” shall have the meaning
specified in Rule 144A under the Securities Act.
5D.
Financial Records. The Company covenants that it will, and
shall cause each of its Subsidiaries to, at all times maintain true
and complete records and books of account, including, without
limiting the generality of the foregoing, appropriate reserves for
possible losses and liabilities, all in accordance with GAAP, and
at all reasonable times (during normal business hours and upon
notice to the Company) permit Prudential or any Significant Holder,
or any representative thereof, to examine the books and records of
the Company and its Subsidiaries and to make excerpts therefrom and
transcripts thereof.
5E.
Franchises. The Company will and shall cause each of its
Subsidiaries to preserve and maintain at all times its existence,
rights and franchises, except as otherwise permitted pursuant to
paragraph 6E hereof; provided that the Company shall not be
required to preserve or maintain its rights or franchises where the
failure to do so will not have a Material Adverse Effect.
5F.
ERISA Compliance. None of the Company or its Subsidiaries shall
incur any material accumulated funding deficiency within the
meaning of ERISA, or any material liability to the PBGC,
established thereunder in connection with any ERISA Plan. The
Company shall furnish to each Significant Holder (a) as soon
as possible and in any event within thirty (30) days after the
Company or any of its Subsidiaries knows or has reason to know that
any Reportable Event with respect to any ERISA Plan has occurred, a
statement of a Financial Officer, setting forth details as to such
Reportable Event and the action that the Company or any of its
Subsidiaries proposes to take with respect thereto, together with a
copy of the notice of such Reportable Event given to the PBGC if a
copy of such notice is available to the Company or any of its
Subsidiaries, and (b) promptly after receipt thereof a copy of any
notice the Company or any of its Subsidiaries, or any member of the
Controlled Group may receive from the PBGC or the Internal Revenue
Service with respect to any ERISA Plan administered by the Company
or any of its Subsidiaries; provided, that this latter clause shall
not apply to notices of general application promulgated by the PBGC
or the Internal Revenue Service. The Company shall promptly notify
each Significant Holder of any material taxes assessed, proposed to
be assessed or that the Company or any of its Subsidiaries has
reason to believe may be assessed against the Company or any of its
Subsidiaries by the Internal Revenue Service with respect to any
ERISA Plan. As used in this Section “material” means
the measure of a matter of significance that shall be determined as
being an amount equal to three percent (3%) of the Consolidated
Total Assets of the Company. As soon as practicable, and in any
event within twenty (20) days, after the Company or any of its
Subsidiaries becomes aware that an ERISA Event has occurred, the
Company or such Subsidiary shall provide each Significant Holder
with notice of such ERISA Event with a certificate by a Financial
Officer setting forth the details of the event and the action the
Company or any of its Subsidiaries or another Controlled Group
member proposes to take with respect thereto. The Company shall, at
the request of any Significant Holder, deliver or cause to be
delivered to such Significant Holder true and correct copies of any
documents relating to the ERISA Plan of the Company or any of its
Subsidiaries.
5G.
Notice. The Company covenants that it will, and will cause each
of its Subsidiaries to, cause a Financial Officer of such Person to
promptly notify Prudential and each Significant Holder whenever
(a) any Default or Event of Default may occur hereunder, or
(b) any default, or event with which the passage of time or
the giving of notice, or both, would cause a default, shall have
occurred under any Material Indebtedness Agreement.
5H.
Environmental Compliance . Except where the failure to do so
would not have or result in a Material Adverse Effect, the Company
covenants that it will, and shall cause each Subsidiary to,
(i) comply in all respects with any and all Environmental Laws
including, without limitation, all Environmental Laws in
jurisdictions in which the Company or any Subsidiary owns or
operates a facility or site, arranges for disposal or treatment of
hazardous substances, solid waste or other wastes, accepts for
transport any hazardous substances, solid waste or other wastes or
holds any interest in real property or otherwise and (ii) not
allow the release or disposal of hazardous waste, solid waste or
other wastes on, under or to any real property in which the Company
or any of its Subsidiaries holds any interest or performs any of
its operations, in violation of any Environmental Law. The Company
shall defend, indemnify and hold Prudential and the holders of
Notes harmless against all costs, expenses, claims, damages,
penalties and liabilities of every kind or nature whatsoever
(including attorneys’ fees) arising out of or resulting from
the noncompliance of the Company or any of its Subsidiaries with
any Environmental Law. Such indemnification shall survive any
termination of this Agreement.
5I.
Pari Passu Ranking. The Company covenants that the obligations
of the Company under this Agreement and the Notes shall, and that
it will, and will cause each Subsidiary to, take all necessary
action to ensure that the obligations of the Company under this
Agreement and the Notes shall, at all times rank at least pari
passu in right of payment (to the fullest extent permitted by law)
with all other senior unsecured Indebtedness of the Company and its
Subsidiaries.
6. NEGATIVE COVENANTS. During the Issuance Period and
so long thereafter as any Note or other amount due hereunder is
outstanding and unpaid, the Company covenants as follows:
6A.
Financial Covenants.
6A(1) . Leverage Ratio . The Company covenants that
it shall not suffer or permit at any time, for the most recently
completed four (4) fiscal quarters of the Company, the
Leverage Ratio to exceed 3.75 to 1.00.
6A(2) . Interest Coverage Ratio . The Company
covenants that it shall not suffer or permit at any time, for the
most recently completed four (4) fiscal quarters of the
Company, the Interest Coverage Ratio to be less than 2.75 to
1.00.
6B.
Indebtedness. The Company covenants that it will not and shall not
permit any of its Subsidiaries to create, incur or have outstanding
any obligation for borrowed money or any Indebtedness of any kind;
provided, that this paragraph 6B shall not apply to:
(i) the
Notes;
(ii) unsecured Indebtedness of the Company under the Primary
Credit Facility in an aggregate amount outstanding at any time not
in excess of $500,000,000;
(iii) the
unsecured Indebtedness of the Company under the 2001 Note Purchase
Agreement in an aggregate principal amount not to exceed One
Hundred Million Dollars ($100,000,000);
(iv) the
unsecured Indebtedness of the Company owing to The Bank of
Tokyo-Mitsubishi UFJ, Ltd. up to the Dollar Equivalent of One
Billion Japanese Yen (¥1,000,000,000);
(v) loans
or capital leases to the Company or any of its Subsidiaries for the
purchase or lease of fixed assets, which loans or leases are
secured by the assets being purchased or leased, so long as the
aggregate principal amount of all such loans and leases for the
Company and its Subsidiaries do not exceed the greater of
(a) Fifty Million Dollars ($50,000,000) and (b) an amount
equal to five percent (5%) of Consolidated Total Assets at any
time;
(vi) loans
by the Company or a Domestic Subsidiary (other than the Receivables
Subsidiary) to another Domestic Subsidiary (other than the
Receivables Subsidiary);
(vii) unsecured loans by a Foreign Subsidiary to a Domestic
Subsidiary (other than the Receivables Subsidiary) or another
Foreign Subsidiary;
(viii) Permitted Foreign Subsidiary Loans and Investments;
(ix) Indebtedness of the Receivables Subsidiary under the
Permitted Receivables Facility, so long as (a) the funded
amount, together with any other Indebtedness thereunder, does not
exceed the greater of (1) One Hundred Million Dollars
($100,000,000) and (2) an amount equal to ten percent (10%) of
Consolidated Total Assets at any time, and (b) the Company
provides a copy of the documents evidencing such transaction to
each Significant Holder; and
(x) additional unsecured Indebtedness of the Company, to the
extent not otherwise permitted pursuant to any of the foregoing
clauses of this paragraph 6B, so long as (a) the Company shall
be in pro forma compliance with paragraph 6A hereof after giving
effect to the incurrence of such Indebtedness, and (b) no
Event of Default shall exist prior to or after giving effect to the
incurrence of any such Indebtedness.
6C.
Liens. The Company covenants and warrants that it will not, and
will not permit any Subsidiary to create, assume or suffer to exist
any Lien upon any of its property or assets, whether now owned or
hereafter acquired; provided that this paragraph 6C shall not apply
to the following:
(i) Liens
for taxes not yet due or that are being actively contested in good
faith by appropriate proceedings and for which adequate reserves
have been established in accordance with GAAP;
(ii) other
statutory Liens incidental to the conduct of its business or the
ownership of its property and assets that (a) were not
incurred in connection with the borrowing of money or the obtaining
of advances or credit, and (b) do not in the aggregate
materially detract from the value of its property or assets or
materially impair the use thereof in the operation of its
business;
(iii) easements or other minor defects or irregularities in
title of real property not interfering in any material respect with
the use of such property in the business of the Company or any of
its Subsidiaries;
(iv) Liens
securing the Notes;
(v) Liens
on fixed assets securing the loans or capital leases pursuant to
paragraph 6B(v) hereof, provided that such Lien only attaches
to the property being acquired or leased;
(vi) Liens
on the Receivables Related Assets in connection with the Permitted
Receivables Facility securing the obligations under the Permitted
Receivables Facility; and
(vii) any
other Liens, to the extent not otherwise permitted pursuant to
subparts (i) through (vi) hereof, so long as the
aggregate amount of Indebtedness secured by all such Liens does not
exceed at any time, for the Company and all Subsidiaries, an amount
equal to seven and one-half percent (7.5%) of Consolidated Total
Assets; provided, however, that no Liens that secure any
obligations of the Company or any Subsidiary under the Primary
Credit Facility or any other Material Indebtedness Agreement shall
be permitted under this clause (vii).
The
Company shall not, and shall not permit any Subsidiary (other than
the Receivable Subsidiary) to, enter into any Material Indebtedness
Agreement (other than any contract or agreement entered into in
connection with the Indebtedness permitted to be incurred pursuant
to paragraph 6B(ii), (iii), (iv), (v) or (x) hereof) that
would prohibit the holders of the Notes from acquiring a security
interest, mortgage or other Lien on, or a collateral assignment of,
any of the property or assets of the Company or any of
Subsidiaries.
6D.
Investments and Loans . The Company covenants that it will not,
and will not permit any Subsidiary to, without the prior written
consent of the Required Holders, (i) create, acquire or hold
any Subsidiary, (ii) make or hold any investment in any
stocks, bonds or securities of any kind, (iii) be or become a
party to any joint venture or other partnership, (iv) make or
keep outstanding any advance or loan to any Person, or (v) be
or become a Guarantor of any kind; provided, that this paragraph 6D
shall not apply to:
(a) investments by the Company or its Subsidiaries in cash and
Cash Equivalents;
(b) any
endorsement of a check or other medium of payment for deposit or
collection through normal banking channels or similar transaction
in the normal course of business;
(c) the
holding of Subsidiaries listed on Schedule 8A(1) hereto and
the creation, acquisition and holding of any new Subsidiary (other
than by the Receivables Subsidiary) after the Closing Date so long
as such new Subsidiary is created, acquired or held in accordance
with the terms and conditions of this Agreement;
(d) loans
to or investments in a Domestic Subsidiary (other than the
Receivables Subsidiary) to or by another Domestic Subsidiary (other
than the Receivables Subsidiary);
(e) loans
to or investments in a Foreign Subsidiary or the Company by another
Foreign Subsidiary;
(f) Permitted Foreign Subsidiary Loans and Investments;
(g) any
advance or loan to an officer or employee of a Company made in the
ordinary course of such Company’s business;
(h) loans
or advances to customers or suppliers in connection with a
contractual arrangement made in the ordinary course of business and
consistent with past practice; and
(i) any
Permitted Investment.
6E.
Merger and Sale of Assets. The Company covenants that it will
not, and will not permit any Subsidiary to, merge or consolidate
with any other Person, or sell, lease or transfer or otherwise
dispose of any assets to any Person other than in the ordinary
course of business, except that, if no Default or Event of Default
shall then exist or immediately thereafter shall begin to
exist:
(i) any
Subsidiary (other than the Receivables Subsidiary) may merge with
(a) the Company (provided that the Company shall be the
continuing or surviving Person), or (b) any one or more
Domestic Subsidiaries (other than the Receivables Subsidiary);
(ii) any
Subsidiary (other than the Receivables Subsidiary) may sell, lease,
transfer or otherwise dispose of any of its assets to (a) the
Company, or (b) any one or more Domestic Subsidiaries (other
than the Receivables Subsidiary);
(iii) in
addition to any merger permitted pursuant to subpart
(i) above, any Foreign Subsidiary may merge with any one or
more Foreign Subsidiaries;
(iv) in
addition to any sale, lease, transfer or other disposition
permitted pursuant to subpart (ii) above, any Foreign
Subsidiary may sell, lease, transfer or otherwise dispose of any of
its assets to any one or more Foreign Subsidiaries;
(v) in
addition to any sale, lease, transfer or other disposition
permitted pursuant to subparts (i) through (iv) above,
any Company may sell accounts receivables to the Receivables
Subsidiary in connection with the Permitted Receivables
Facility;
(vi) any
merger or consolidation that constitutes an Acquisition permitted
pursuant to paragraph 6F hereof; and
(vii) in
addition to any sale, lease, transfer or other disposition
permitted pursuant to subparts (i) through (v) above, the
Company or any Subsidiary (other than the Receivables Subsidiary)
may sell, lease, transfer or otherwise dispose of any of its assets
to any Person so long as the aggregate amount of all such assets
sold, leased, transferred or otherwise disposed of by the Company
and all of its Subsidiaries does not exceed an amount equal to five
and one-half percent (5.50%) of Consolidated Total Assets during
any fiscal year of the Company.
6F.
Acquisitions. The Company covenants that it will not, and will
not permit any Subsidiary to, effect an Acquisition, except that
the Company or any Subsidiary (other than the Receivables
Subsidiary) may effect an Acquisition so long as (a) the
Company or such Subsidiary shall be the surviving entity if such
Acquisition is a merger or consolidation with the Company or a
Subsidiary; (b) the business to be acquired shall be similar,
related, complementary or beneficial to the lines of business of
the Company and its Subsidiaries; (c) the Board of Directors
(or equivalent governing body) and the management of the Person to
be acquired shall have approved such Acquisition; (d) no
Default or Event of Default shall then exist or immediately
thereafter shall begin to exist; and (e) if the aggregate
Consideration paid in connection with such Acquisition is in excess
of One Hundred Million Dollars ($100,000,000), the Company shall
have provided to Prudential and the Required Holders, at least five
(5) days prior to such Acquisition, historical financial
statements of the target entity accompanied by a certificate of a
Financial Officer of the Company certifying pro forma compliance
with paragraph 6A hereof, both before and after the proposed
Acquisition.
6G.
Affiliate Transactions. The Company covenants that it will not,
and will not permit any Subsidiary to, directly or indirectly,
enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property
or the rendering of any service) with any Affiliate of the Company
or its Subsidiaries on terms that are less favorable to the Company
or such Subsidiary, as the case may be, than those that might be
obtained at the time in a transaction with a non-Affiliate;
provided, however, that the foregoing shall not prohibit
(i) the payment of customary and reasonable directors’
fees to directors who are not employees of the Company or its
Subsidiaries or any Affiliate thereof; or (ii) any
transaction, including, but not limited to the transactions
contemplated pursuant to the Permitted Receivables Facility,
between the Company and an Affiliate that the Company reasonably
determines in good faith is beneficial to the Company and its
Affiliates as a whole and that is not entered into for the purpose
of hindering the exercise by Prudential or any holder of a Note of
its rights or remedies under this Agreement or any other
Transaction Document.
6H.
Restricted Payments.
(i) The
Company covenant that it will cause each Subsidiary to make Capital
Distributions to the Company of such Subsidiary’s Net
Earnings on a regular basis consistent with the past practices of
the Company, subject to paragraph 6I.
(ii) Except
for any Restricted Payment made pursuant to clause (i) of this
paragraph 6H, the Company covenants that it will not and will not
permit any Subsidiary to make or commit itself to make any
Restricted Payment, provided, that: (a) any Subsidiary may
make or commit itself to make, directly or indirectly, any Capital
Distribution to the Company at any time; (b) if no Default or
Event of Default shall then exist or immediately thereafter shall
begin to exist, the Company may make Capital Distributions to the
shareholders of the Company; and (c) if no Default or Event of
Default shall then exist or immediately thereafter shall begin to
exist, the Company may make Share Repurchases.
6I.
Restrictive Agreements. Except as set forth in this Agreement,
the Company covenants that it will not, and will not permit any
Subsidiary (excluding the Receivable Subsidiary) to, directly or
indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any
Subsidiary (excluding the Receivables Subsidiary) to (i) make,
directly or indirectly, any Capital Distribution to the Company;
(ii) make, directly or indirectly, loans or advances or
capital contributions to the Company; or (iii) transfer,
directly or indirectly, any of the properties or assets of such
Subsidiary (excluding the Receivables Subsidiary) to the Company,
except for such encumbrances or restrictions existing under or by
reason of (1) applicable law, (2) customary
non-assignment provisions in leases or other agreements entered in
the ordinary course of business and consistent with past practices,
(3) customary restrictions in security agreements or mortgages
securing Indebtedness of the Company or its Subsidiaries to the
extent such restrictions only restrict the transfer of the property
subject to such security agreement or mortgage or
(4) customary and reasonable restrictions in agreements
necessary to obtain Permitted Foreign Subsidiary Loans and
Investments so long as such restrictions do not materially encumber
the ability of the Foreign Subsidiaries taken as a whole to make
Capital Distributions.
6J.
Guaranties of Payment; Guaranty Under Material Indebtedness
Agreement . The Company covenants that it will not permit any
Subsidiary to become a Guarantor in respect of any Indebtedness
under the Primary Credit Facility or any other Material
Indebtedness Agreement unless, prior to or concurrently therewith
(i) the Company shall have caused each such Subsidiary to
execute and deliver to Prudentia
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