Attached files
file | filename |
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8-K - Measurement Specialties Inc | v187098_8k.htm |
EX-99.2 - Measurement Specialties Inc | v187098_ex99-2.htm |
EX-99.1 - Measurement Specialties Inc | v187098_ex99-1.htm |
Execution
Copy
Measurement
Specialties, Inc.
$10,000,000
5.70% Series A Senior Notes Due June 1, 2015
$10,000,000
6.15% Series B Senior Notes Due June 1, 2017
$30,000,000
Uncommitted Private Shelf Facility
Note
Purchase and Private Shelf Agreement
Dated
June 1, 2010
TABLE
OF CONTENTS
(Not Part
of Agreement)
Page
|
|||
1.
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AUTHORIZATION OF ISSUE OF
NOTES
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1
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1A.
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Authorization of Issue of Series A
Notes
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1
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1B.
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Authorization of Issue of Series B
Notes
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2
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1C.
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Authorization of Issue of Shelf Notes.
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2
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2.
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PURCHASE AND SALE OF NOTES
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2
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2A.
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Purchase and Sale of Series A and Series B
Notes
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2
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2B.
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Purchase and Sale of Shelf
Notes
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3
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2B(1).
|
Facility.
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3
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2B(2).
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Issuance Period
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3
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2B(3).
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Request for Purchase
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4
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2B(4).
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Rate Quotes
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4
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2B(5).
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Acceptance
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4
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2B(6).
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Market Disruption
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5
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2B(7).
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Facility Closings
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5
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2B(8).
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Fees
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6
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2B(8)(i).
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Delayed Delivery Fee
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6
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2B(8)(ii).
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Cancellation Fee
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7
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3.
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CONDITIONS OF CLOSING
|
7
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3A.
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Closing Documents
|
7
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|
3B.
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Opinion of Purchaser's Special
Counsel
|
10
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3C.
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Representations and Warranties; No Default;
Absence of Material Adverse Effect
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10
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3D.
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Purchase Permitted by Applicable
Laws
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10
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3E.
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Payment of Fees and
Expenses
|
11
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3F.
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Payment Instructions
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11
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3G.
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Credit Agreement
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11
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4.
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PREPAYMENTS
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11
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4A.
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Required Prepayments of Series A
Notes
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11
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4B.
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Required Prepayments of Series B
Notes
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11
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4C.
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Required Prepayments of Shelf
Notes
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11
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4D(1).
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Optional Prepayment With Yield-Maintenance
Amount
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11
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4D(2).
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Prepayment Pursuant to Intercreditor
Agreement
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12
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4E.
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Notice of Optional
Prepayment
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12
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4F.
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Application of Prepayments
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12
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4G.
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No Acquisition of Notes
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12
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5.
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AFFIRMATIVE COVENANTS
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12
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5A.
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Financial Statements and Other
Information
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13
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5B.
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Notices of Material Events.
|
14
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5C.
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Existence; Conduct of
Business.
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15
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5D.
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Payment of Obligations
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15
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5E.
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Maintenance of Properties;
Insurance
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16
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5F.
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Books and Records; Inspection
Rights
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16
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5G.
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Compliance with Laws and Material Contractual
Obligations
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17
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5H.
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Use of Proceeds
|
17
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5I.
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Subsidiary Guarantors; Pledges; Additional
Collateral; Further Assurances
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17
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5J.
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Most Favored Lender Status
|
19
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5K.
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Information Required by Rule
144A
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20
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5L.
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Covenant to Secure Notes
Equally
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20
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5M.
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Guaranteed Obligations.
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21
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6.
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COVENANTS.
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21
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6A.
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Indebtedness
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21
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6B.
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Liens.
|
23
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6C.
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Fundamental Changes
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25
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6D.
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Investments, Loans, Advances, Guarantees and
Acquisitions
|
26
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6E.
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Asset Sales
|
28
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|
6F.
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Swap Agreements
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30
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6G.
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Transactions with
Affiliates
|
30
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6H.
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Restricted Payments
|
30
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|
6I.
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Restrictive Agreements
|
31
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6J.
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Subordinated Indebtedness and Amendments to
Subordinated Indebtedness Documents
|
31
|
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6K.
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Sale and Leaseback
Transactions.
|
32
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|
6L.
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Financial Covenants
|
33
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6M.
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Operating Lease Expense.
|
33
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7.
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EVENTS OF DEFAULT
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33
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7A.
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Acceleration
|
33
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7B.
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Rescission of Acceleration
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37
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7C.
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Notice of Acceleration or
Rescission.
|
37
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7D.
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Other Remedies
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37
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8.
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REPRESENTATIONS AND
WARRANTIES
|
37
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8A.
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Organization; Powers;
Subsidiaries
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38
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8B.
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Authorization;
Enforceability
|
38
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8C.
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Governmental Approvals; No
Conflicts
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38
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8D.
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Financial Condition; No Material Adverse
Change
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39
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8E.
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Properties
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39
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8F.
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Litigation, Environmental and Labor
Matters
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40
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8G.
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Compliance with Laws and
Agreements
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40
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8H.
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Investment Company Status.
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40
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8I.
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Taxes.
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40
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8J.
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ERISA.
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41
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8K.
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Disclosure
|
41
|
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8L.
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Federal Reserve
Regulations.
|
41
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8M.
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Liens.
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41
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8N.
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No Default
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41
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8O.
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No Burdensome Restrictions
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42
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8P.
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Solvency
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42
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8Q.
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Insurance
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42
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8R.
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Security Interest in
Collateral
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42
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8S.
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Offering of Notes
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42
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8T.
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Rule 144A
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43
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8U.
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Foreign Assets Control Regulations,
etc
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43
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9.
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REPRESENTATIONS OF THE
PURCHASERS
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43
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9A.
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Nature of Purchase.
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43
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9B.
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Source of Funds
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44
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2
10.
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DEFINITIONS; ACCOUNTING
MATTERS
|
45
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10A.
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Yield-Maintenance Terms
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45
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10B.
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Other Terms
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47
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10C.
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Terms Generally
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67
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10D.
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Accounting Terms; GAAP
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68
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10E.
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Status of Obligations
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68
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11.
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MISCELLANEOUS
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69
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11A.
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Note Payments
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69
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11B.
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Expenses
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69
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11C.
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Consent to Amendments
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70
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11D.
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Form, Registration, Transfer and Exchange of
Notes; Lost Notes
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71
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11E.
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Persons Deemed Owners;
Participations
|
72
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11F.
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Survival of Representations and Warranties; Entire
Agreement.
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72
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11G.
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Successors and Assigns
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72
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11H.
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Independence of Covenants
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72
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11I.
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Notices.
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73
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11J.
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Payments Due on Non-Business
Days
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73
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11K.
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Severability
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73
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11L.
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Descriptive Headings
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74
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11M.
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Satisfaction Requirement.
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74
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11N.
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Governing Law
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74
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11O.
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Consent to Jurisdiction; Waiver or
Immunities
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74
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11P.
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WAIVER OF JURY TRIAL
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75
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11Q.
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Severalty of Obligations.
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75
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11R.
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Counterparts
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75
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11S.
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Binding Agreement
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75
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11T.
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Directly or Indirectly
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76
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11U.
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Transaction References
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76
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11V.
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Replacement Intercreditor Agreement and Collateral
Documents
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76
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PURCHASER
SCHEDULE
|
||
INFORMATION
SCHEDULE
|
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SCHEDULE
6A – EXISTING INDEBTEDNESS
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SCHEDULE
6B – EXISTING LIENS
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SCHEDULE
6D – EXISTING INVESTMENTS
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SCHEDULE
6I – EXISTING RESTRICTIVE AGREEMENTS
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SCHEDULE
8A – SUBSIDIARIES
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SCHEDULE
8F – EXISTING LITIGATION, ENVIRONMENTAL AND LABOR
MATTERS
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SCHEDULE
8G – COMPLIANCE WITH LAWS
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EXHIBIT
A-1
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–
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FORM
OF SERIES A NOTE
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EXHIBIT
A-2
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–
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FORM
OF SERIES B NOTE
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EXHIBIT
A-3
|
–
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FORM
OF SHELF NOTE
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EXHIBIT
B
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–
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FORM
OF FUNDS DELIVERY INSTRUCTION LETTER
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EXHIBIT
C
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–
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FORM
OF REQUEST FOR PURCHASE
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EXHIBIT
D
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–
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FORM
OF CONFIRMATION OF ACCEPTANCE
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EXHIBIT
E
|
–
|
FORM
OF OPINION OF COMPANY'S
COUNSEL
|
3
Measurement
Specialties, Inc.
1000
Lucas Way
Hampton,
VA 23666
Attention:
Mark Thomson
As
of June 1, 2010
Prudential
Investment Management, Inc
Each
Series A Purchaser
Each
Series B Purchaser
Each
Prudential Affiliate (as hereinafter
defined)
which becomes bound by certain
provisions
of this Agreement as hereinafter
provided
c/o
Prudential Capital Group
1170
Peachtree Street, Suite 500
Atlanta,
Georgia 30309
Ladies
and Gentlemen:
The
undersigned, Measurement Specialties, Inc. (herein called the “Company”), hereby agrees with
you as follows:
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 $10,000,000, to be dated the
date of issue thereof, to mature June 1, 2015, 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 5.70% per annum, but at the Default Rate
if an Event of Default has occurred and is continuing and at the Default Rate on
any overdue interest, 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
such Series A Note pursuant to any such provision. Capitalized terms
used herein have the meanings specified in paragraph 10.
1B. Authorization of Issue of Series B
Notes. The Company will authorize the issue of its senior promissory
notes (the “Series B
Notes”) in the aggregate principal amount of $10,000,000, to
be dated the date of issue thereof, to mature June 1, 2017, 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 6.15% per annum, but at the
Default Rate if an Event of Default has occurred and is continuing and at the
Default Rate on any overdue interest, and to be substantially in the form of
Exhibit A-2
attached hereto. The terms “Series B Note” and “Series B Notes” as used herein
shall include each Series B Note delivered pursuant to any provision of this
Agreement and each Series B Note delivered in substitution or exchange for any
such Series B Note pursuant to any such provision.
1C. 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 $30,000,000, to be dated the date of issue thereof, to
mature, in the case of each Shelf Note so issued, no more than 10 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 7 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), but with interest at the Default Rate if an Event of Default has occurred
and is continuing and at the Default Rate on any overdue interest, and to be
substantially in the form of Exhibit A-3 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, each Series B Note and each Shelf Note delivered
pursuant to any provision of this Agreement and each Note delivered in
substitution or exchange for any such Note pursuant to any such
provision. 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 and
Series B Notes. The Company hereby agrees to sell to each
Series A Purchaser and each Series B Purchaser and, subject to the terms and
conditions herein set forth, each Series A Purchaser and each Series B Purchaser
agrees to purchase from the Company the aggregate principal amount of Series A
Notes and Series B Notes set forth opposite its name on the Purchaser Schedule
attached hereto at 100% of such aggregate principal amount. On June
1, 2010 or any other
date prior to June 1, 2010 upon which the Company and the Series A Purchasers
and the Series B Purchasers may agree (herein called the “Initial Closing Day”), the
Company will deliver to the Series A Purchasers and Series B Purchasers at the
offices of King & Spalding LLP, 1185 Avenue of the Americas, New York, New
York 10036, one or more Series A Notes or Series B Notes registered in its name,
evidencing the aggregate principal amount of Series A Notes and Series B Notes
to be purchased by each Series A Purchaser and each Series B Purchaser and in
the denomination or denominations specified with respect to each Series A
Purchaser and each Series B Purchaser in the Purchaser Schedule attached hereto,
against payment of the purchase price thereof by transfer of immediately
available funds for credit to the Company's account 9429223734 at Bank of
America, N.A. (ABA No. 026009593), as identified in a written instruction of the
Company, in the form of Exhibit B attached
hereto, delivered to the Series A Purchasers and Series B Purchasers before the
Initial Closing Day.
2
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 and 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 1C,
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, 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 and (ii) the thirtieth day after Prudential shall have given to the
Company, or the Company shall have given to Prudential, written notice stating
that it elects to terminate the issuance and sale of Shelf Notes pursuant to
this Agreement (or if such thirtieth day is not a Business Day, the Business Day
next preceding such thirtieth day). The period during which Shelf
Notes may be issued and sold pursuant to this Agreement is herein called the
“Issuance
Period”.
3
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 telecopier 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, principal prepayment dates and amounts and interest
payment periods (quarterly or semi-annual 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 telecopier, in
each case between 9:30 A.M. and 1:30 P.M. New York City 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 Prudential or a Prudential Affiliate would
be willing to purchase such Shelf Notes at 100% of the principal amount
thereof.
2B(5). Acceptance. Within
30 minutes after Prudential shall have provided any interest rate quotes
pursuant to paragraph 2B(4) or such shorter period as Prudential may specify to
the Company (such period herein called the “Acceptance Window”), 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 telecopier 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 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 Prudential or a Prudential
Affiliate, and Prudential agrees to purchase, or to cause the purchase by a
Prudential Affiliate of, the Accepted Notes at 100% of the principal amount of
such Notes. As soon as practicable following the Acceptance Day, the Company,
Prudential 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 receipt thereof a
Confirmation of Acceptance with respect to any Accepted Notes, Prudential may at
its election at any time prior to its receipt thereof cancel the closing with
respect to such Accepted Notes by so notifying the Company in
writing.
4
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 derivatives 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 derivatives,
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 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 King & Spalding LLP, 1185 Avenue of the Americas, New York, New
York 10036, 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 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)(i) 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 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 elect to reschedule a closing with respect to any
given Accepted Notes on not more than one occasion, unless Prudential shall have
otherwise consented in writing.
5
2B(8). Fees.
2B(8)(i). 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 of 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 on the date Prudential receives notice of the delay in the closing
for such Accepted Note having a maturity date or dates the same as, or closest
to, the Rescheduled Closing Day or Rescheduled Closing Days (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 with
respect to 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).
6
2B(8)(ii). 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 the Purchaser of 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)(i). The foregoing bid and
ask prices shall be as reported by the publicly available source of such market
data as is then customarily utilized by Prudential Capital
Group). Each price shall be rounded to the second decimal
place. In no case shall the Cancellation Fee be less than
zero.
3. CONDITIONS OF
CLOSING. The obligation of any Purchaser to purchase and pay
for any Notes is subject to the satisfaction, on or before the Closing Day for
such Notes, of the following conditions:
3A.
Closing
Documents. Such Purchaser shall have received the following,
each dated the date of the applicable Closing Day unless otherwise specified
below:
(i) The Note(s)
to be purchased by such Purchaser.
(ii) A favorable opinion
of DLA Piper LLP (US), special counsel to the Company (or such other counsel
designated by the Company and acceptable to each Purchaser) satisfactory to each
Purchaser and substantially in the form of Exhibit E attached
hereto, and as to such other matters as a Purchaser may reasonably
request. The Company hereby directs each such counsel to deliver such
opinion, agrees that the issuance and sale of any Notes will constitute a
reconfirmation of such direction, and understands and agrees that each Purchaser
will and hereby is authorized to rely on such opinion.
7
(iii)
A
Certificate of the Secretary or an Assistant Secretary of each Credit Party
certifying (a) that there have been no changes in the Certificate of
Incorporation or other charter document of such Credit Party, as attached
thereto and as certified as of a recent date by the Secretary of State (or
analogous governmental entity) of the jurisdiction of its organization, since
the date of the certification thereof by such governmental entity, (b) the
By-Laws or other applicable organizational document, as attached thereto, of
such Credit Party as in effect on the date of such certification, (c)
resolutions of the Board of Directors or other governing body of such Credit
Party authorizing the execution, delivery and performance of each Note Document
to which it is a party, (d) the names and true signatures of the incumbent
officers of each Credit Party authorized to sign the Note Documents to which it
is a party, and (e) certifying that no dissolution or liquidation proceedings as
to the Company have been commenced or are contemplated.
(iv) Certified
copies of Requests for Information or Copies (Form UCC 11) or equivalent reports
dated as of a recent date, listing all effective financing statements which name
each Credit Party (under its present name and previous names used within the
past five years) as debtor and which are filed in the jurisdiction in which such
Credit Party is organized and such other jurisdictions as the Purchasers shall
require, together with copies of such financing statements.
(v) An
Officer's Certificate certifying as to the matters set forth in Paragraph 3C
below.
(vi) Corporate
and tax good standing certificates dated as of a recent date as to each Credit
Party, from the jurisdictions in which it is organized or incorporated and each
other jurisdiction where a failure to be qualified could reasonably be expected
to have a Material Adverse Effect.
(vii) A
Certificate of the chief financial officer of each Credit Party in form and
substance satisfactory to the Purchasers supporting the conclusions that, (a)
immediately after the consummation of the Transactions and the incurrence of
Indebtedness under the Credit Agreement to occur on any Closing Day, the Company
and its Subsidiaries taken as a whole, are and will be Solvent and (b) after
giving effect to the contribution rights among Credit Parties contained in the
Note Documents, each Credit Party (other than the Dormant Subsidiaries) is
Solvent.
(viii) [Intentionally
omitted];
(ix) On
the Initial Closing Day, the Company shall have delivered, or caused all
Domestic Subsidiaries of the Company (other than any Domestic Subsidiary that is
a direct or indirect Subsidiary of a Foreign Subsidiary) to deliver, the fully
executed Subsidiary Guaranty, in a form acceptable to the Purchasers, executed
by each Domestic Subsidiary (other than any Domestic Subsidiary that is a direct
or indirect Subsidiary of a Foreign Subsidiary), and on each subsequent Closing
Day, a reaffirmation of such Subsidiary Guaranty executed by all Domestic
Subsidiaries of the Company (other than any Domestic Subsidiary that is a direct
or indirect Subsidiary of a Foreign Subsidiary) in form and substance reasonably
satisfactory to the Purchasers.
8
(x) On
the Initial Closing Day, a fully executed intercreditor agreement, in a form
acceptable to the Purchasers (the “Intercreditor Agreement”), executed by the
Purchasers, JPMorgan Chase Bank, N.A., as collateral agent and administrative
agent under the Credit Agreement, and on each subsequent Closing Day, a joinder
to the Intercreditor Agreement executed by any additional Purchasers not already
parties thereto, together with written authorization from the Company to the
Collateral Agent to allow such Purchasers to become parties
thereto.
(xi) On
the Initial Closing Day, the Pledge and Security Agreement executed by the
Credit Parties in favor of the Collateral Agent for the benefit of the Secured
Parties, together with, to the extent required under the Security Agreement,
pledged instruments and allonges, stock certificates, stock powers executed in
blank, pledge instructions and acknowledgments, as appropriate.
(xii) On
the Initial Closing Day, a Confirmatory Grant of Security Interest in United
States Patents made by certain of the Credit Parties in favor of the Collateral
Agent for the benefit of the Secured Parties.
(xiii) On
the Initial Closing Day, a Confirmatory Grant of Security Interest in United
States Trademarks made by certain of the Credit Parties in favor of the
Collateral Agent for the benefit of the Secured Parties.
(xiv) On
the Initial Closing Day, a Confirmatory Grant of Security Interest in United
States Copyrights made by certain of the Credit Parties in favor of the
Collateral Agent for the benefit of the Secured Parties.
(xv) On
the Initial Closing Day, the following financial information: (a)
satisfactory audited consolidated financial statements of the Company for the
two most recent fiscal years ended prior to the Initial Closing Day as to which
such financial statements are publicly available, (b) satisfactory unaudited
interim consolidated financial statements of the Company for each quarterly
period ended subsequent to the date of the latest financial statements delivered
pursuant to clause (a) of this paragraph as to which such financial statements
are publicly available and (c) satisfactory financial statement projections
through and including the Company’s 2014 fiscal year, together with such
information as the Purchasers shall reasonably request (including, without
limitation, a detailed description of the assumptions used in preparing such
projections).
(xvi) On
the Initial Closing Day, UCC financing statements naming each Credit Party as
debtor and the Collateral Agent as secured party to be filed with the
appropriate offices in applicable jurisdictions.
9
(xvii) On
the Initial Closing Day, certificates of insurance dated as of a recent date
listing the Collateral Agent as (a) lender loss payee for the property, casualty
and business interruption insurance policies of the Credit Parties, together
with long-form lender loss payable endorsements, as appropriate, and (b)
additional insured with respect to the liability insurance of the Credit
Parties, together with additional insured endorsements.
(xviii) On
the Initial Closing Day, a certified copy of the Credit Agreement and any
guaranties, notes and collateral documents executed in connection
therewith.
(xix) On
the Initial Closing Day, evidence reasonably satisfactory to the Purchasers that
the Existing Credit Agreement shall have been terminated and cancelled and all
indebtedness thereunder shall have been fully repaid (except to the extent being
so repaid with the proceeds of the Series A Notes and Series B Notes) and any
and all liens thereunder shall have been terminated.
(xx) Such
additional documents or certificates with respect to legal matters or corporate
or other proceedings related to the transactions contemplated hereby as may be
reasonably requested by such Purchaser.
3B. Opinion of Purchaser's Special
Counsel. Such Purchaser shall have received from King &
Spalding, LLP or such other counsel who is acting as special counsel for it 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. Representations and Warranties; No
Default; Absence of Material Adverse Effect. The
representations and warranties contained in paragraph 8 shall be true on and as
of such Closing Day, except to the extent of changes caused by the transactions
herein contemplated and except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be
true and correct as of such earlier date. There shall exist on such
Closing Day no Event of Default or Default. Subject to the disclosure
in Schedule 8F, since March 31, 2009, no Material Adverse Effect has occurred or
could reasonably be expected to occur.
3D. Purchase Permitted by Applicable
Laws. The purchase of and payment for the Notes to be purchased by such
Purchaser 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 (other than any
Excluded Taxes), 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. “Excluded Taxes” shall mean
income or franchise taxes imposed on (or measured by) any Purchaser’s net
income.
10
3E. Payment of Fees and
Expenses. The Company shall have paid to each Purchaser any
fees due it pursuant to or in connection with this Agreement, including any
Delayed Delivery Fee due pursuant to paragraph 2B(8)(i), and paid or reimbursed
the Purchasers for their costs and expenses incurred in connection with this
Agreement (including reasonable fees, charges and disbursements of King &
Spalding LLP, counsel to the holders of Notes).
3F. Payment
Instructions. Each Purchaser shall have received the letter
described in paragraph 2 on the letterhead of the Company on the Initial Closing
Day and at least 48 hours prior to any other Closing Day.
3G. Credit
Agreement. On the Initial Closing Day, all conditions
precedent to the Credit Agreement shall have been satisfied and the Credit
Agreement shall become effective simultaneously with this
Agreement.
4. PREPAYMENTS. The
Series A Notes, Series B Notes and any Shelf Notes shall be subject to required
prepayment as and to the extent provided in paragraphs 4A, 4B and 4C,
respectively. The Series A Notes, the Series B Notes and any Shelf
Notes shall also be subject to prepayment under the circumstances set forth in
paragraph 4D. Any prepayment made by the Company pursuant to any
other provision of this paragraph 4 shall not reduce or otherwise affect its
obligation to make any required prepayment as specified in paragraph
4C.
4A. Required Prepayments of Series A
Notes. The Series A Notes shall not be subject to required
prepayment.
4B. Required Prepayments of Series B
Notes. The Series B Notes shall not be subject to required
prepayment.
4C. 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.
4D(1).
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), 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 the Notes pursuant to this paragraph 4D shall
be applied in satisfaction of required payments of principal in inverse order of
maturity.
11
4D(2).
Prepayment Pursuant to
Intercreditor Agreement. Any prepayment of Notes pursuant to the
Intercreditor Agreement shall be applied ratably to all Notes and shall include
interest thereon to the prepayment date and the Yield-Maintenance Amount, if
any, with respect thereto.
4E. Notice of Optional
Prepayment. The Company shall give the holder of each Note of
a Series irrevocable written notice of any prepayment pursuant to paragraph
4D(1) not less than 3 Business Days prior to the prepayment date, specifying
such prepayment date, the aggregate principal amount of the Notes of such Series
to be prepaid on such date, the principal amount of the Notes of such Series
held by such holder to be prepaid on such date and that such prepayment is to be
made pursuant to paragraph 4D(1). 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
4D(1), give telephonic notice of the principal amount of the Notes to be prepaid
and the prepayment date to each holder of such Notes 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.
4F. Application of Prepayments. In
the case of each prepayment of less than the entire unpaid principal amount of
all outstanding Notes of any Series pursuant to paragraphs 4C or 4D, the amount
to be prepaid shall be applied pro rata to all outstanding Notes of such Series
(including, for the purpose of this paragraph 4F only, all Notes prepaid or
otherwise retired or purchased or otherwise acquired by the Company or any of
its Subsidiaries or Affiliates other than by prepayment pursuant to paragraph 4C
or 4D) according to the respective unpaid principal amounts
thereof.
4G.
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
paragraphs 4C or 4D or upon acceleration of such final maturity pursuant to
paragraph 7A), or purchase or otherwise acquire, directly or indirectly, Notes
held by any holder.
5.
AFFIRMATIVE
COVENANTS. During the Issuance Period and so long thereafter
as any Note or any amount owing under this Agreement is outstanding and unpaid,
the Company covenants as follows:
12
5A.
Financial Statements and Other
Information. The Company will furnish to each holder of a
Note:
(i) within
ninety (90) days after the end of each fiscal year of the Company, commencing
with the fiscal year of the Company ending on March 31, 2010, its audited
consolidated balance sheet and related statements of operations, stockholders’
equity and cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported
on by KPMG LLP or other independent public accountants of recognized national
standing (without a “going concern” or like qualification or exception and
without any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Company and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied;
(ii) within
forty-five (45) days after the end of each of the first three fiscal quarters of
each fiscal year of the Company, its consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the Company and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(iii) concurrently
with any delivery of financial statements under clause (i) or (ii) above, a
certificate of a Financial Officer of the Company (a) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (b)
setting forth reasonably detailed calculations demonstrating compliance with
paragraph 6L and (c) stating whether any change in GAAP or in the application
thereof has occurred since March 31, 2009 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(iv)
[Intentionally Omitted];
(v) as
soon as available, but in any event not more than sixty (60) days after the end
of each fiscal year of the Company, a copy of the plan and forecast (including a
projected consolidated and consolidating balance sheet, income statement and
funds flow statement) of the Company for each month of the upcoming fiscal
year;
13
(vi) promptly,
but in any event within five (5) Business Days after the same become publicly
available, copies of all periodic and other reports, proxy statements and other
materials filed by the Company or any Subsidiary with the SEC, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Company to its shareholders generally, as the case may be;
(vii) to
the extent that pursuant to paragraph 10D, the Company or the Required Holders
have requested an amendment to any provision hereof to eliminate the effect of
any change occurring after the date hereof in GAAP or in the application thereof
on the operation of such provision, then until such amendment is effective, then
within five Business Days following the delivery of the financial statements
required to be delivered under clause (i) and (ii) above, financial statements
setting forth a reconciliation between the calculations of all financial
covenants, including without limitation the Leverage Ratio and the Fixed Charge
Coverage Ratio, before and after giving effect to such change in GAAP;
and
(viii) promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Company or any Subsidiary, or
compliance with the terms of this Agreement, as the holder of any Note may
reasonably request.
Documents
required to be delivered pursuant to clauses (i) and (ii) of this paragraph 5A
may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date on which such documents are filed for public
availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the
Company shall notify (which may be by facsimile or electronic mail) each holder
of any Note of the filing of any such documents and provide to each holder of
any Note by electronic mail electronic versions (i.e., soft copies) of such
documents. Reports, proxy statements and other materials filed by the
Company or any Subsidiary with the SEC or any Governmental Authority succeeding
to any or all of the functions of said Commission, or with any
national securities exchange, required to be delivered pursuant to clause (e) of
this paragraph 5A shall be deemed delivered on the date on which such documents
are filed for public availability on the SEC’s Electronic Data Gathering and
Retrieval System; provided that the
Company shall notify (which may be by facsimile or electronic mail) each holder
of any Note of the filing of any such reports, statements or other
materials. Notwithstanding anything contained herein, in every
instance the Company shall be required to provide paper copies of the compliance
certificates required by clause (c) of this paragraph 5A to each holder of any
Note.
5B. Notices of Material
Events. The Company will furnish to each holder of any Note
written notice of the following:
14
(i)
within three (3) Business Days after an executive officer of
Company or a Financial Officer has actual knowledge thereof, the occurrence of
any Default;
(ii) promptly
upon having actual knowledge thereof, the filing or commencement of
any action, suit or proceeding by or before any arbitrator or Governmental
Authority against or affecting the Company or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(iii) promptly
upon having actual knowledge thereof, the occurrence of any ERISA
Event that, alone or together with any other ERISA Events that have occurred,
could reasonably be expected to result in a Material Adverse Effect;
and
(iv) within
three (3) Business Days after an executive officer of Company or a Financial
Officer has actual knowledge thereof, any other development that results in, or
could reasonably be expected to result in, a Material Adverse
Effect.
Each
notice delivered under this paragraph shall be accompanied by a statement of a
Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
5C. Existence; Conduct of
Business. The Company will, and will cause each of its
Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the rights,
qualifications, licenses, permits, privileges, franchises, governmental
authorizations and intellectual property rights material to the conduct of its
business, and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under paragraph 6C.
5D. Payment of
Obligations. The Company will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not
paid, could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Company or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse
Effect.
15
5E. Maintenance of Properties;
Insurance. The Company will, and will cause each
of its Subsidiaries to, (i) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, and (ii) maintain with financially sound and reputable carriers
(a) insurance in such amounts (with no greater risk retention) and against such
risks (including loss or damage by fire and loss in transit; theft, burglary,
pilferage, larceny, embezzlement, and other criminal activities; business
interruption; and general liability) and such other hazards, as is customarily
maintained by companies of established repute engaged in the same or similar
businesses operating in the same or similar locations and (b) all insurance
required pursuant to the Collateral Documents. The Company will
furnish to the holders of the Notes, upon request of the Required Holders,
information in reasonable detail as to the insurance so
maintained. The Company shall deliver to the Collateral Agent
endorsements (x) to all “All Risk” physical damage insurance policies on all of
the Credit Parties’ tangible personal property and assets and business
interruption insurance policies naming the Collateral Agent as lender loss
payee, and (y) to all general liability and other liability policies naming the
Collateral Agent an additional insured. In the event the Company or
any of its Subsidiaries at any time or times hereafter shall fail to obtain or
maintain any of the policies or insurance required herein or to pay any premium
in whole or in part relating thereto, then the Collateral Agent, without waiving
or releasing any obligations or resulting Default hereunder, may at any time or
times thereafter (but shall be under no obligation to do so) obtain and maintain
such policies of insurance and pay such premiums and take any other action with
respect thereto which the Collateral Agent deems advisable. The
Company will furnish to the holders of the Notes prompt written notice of any
casualty or other insured damage to any material portion of the Collateral or
the commencement of any action or proceeding for the taking of any material
portion of the Collateral or interest therein under power of eminent domain or
by condemnation or similar proceeding.
5F. Books and Records; Inspection
Rights. The Company will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
business and activities. The Company will, and will cause each of its
Subsidiaries to, permit any representatives designated any holder of any Note,
upon at least three (3) Business Days’ prior written notice, to visit and
inspect its properties, to examine and make extracts from its books and records,
including environmental assessment reports and Phase I or Phase II studies, and
to discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested;
provided, however, in no event shall such visitations, inspections or
examinations occur more frequently than twice per calendar year provided that no
Event of Default has occurred and is continuing. The Company
acknowledges that any holder of any Note, after exercising its rights of
inspection, may prepare and distribute to the holders of the Notes certain
reports pertaining to the Company and its Subsidiaries’ assets for internal use
by the holders of the Notes.
16
5G. Compliance with Laws and Material
Contractual Obligations. The Company will, and will cause each
of its Subsidiaries to, (i) comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property (including
without limitation Environmental Laws) and (ii) perform in all material respects
its obligations under material agreements to which it is a party, in each case
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
5H. Use of
Proceeds. The proceeds of the Notes will be used only (i) to
refinance the outstanding Indebtedness of the Company and its Subsidiaries and
(ii) to finance the working capital needs, for general corporate purposes of the
Company and its Subsidiaries in the ordinary course of business and for
Permitted Acquisitions. No part of the proceeds of any Note will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and
X.
5I. Subsidiary Guarantors; Pledges;
Additional Collateral; Further Assurances.
(i) As
promptly as possible but in any event within thirty (30) days (or such later
date as may be agreed upon by the Required Holders) after any Person becomes a
Subsidiary, the Company shall provide the holders of the Notes with written
notice thereof setting forth information in reasonable detail describing the
material assets of such Person. The Company shall, concurrently with
such notice, cause each such Subsidiary which is a Domestic Subsidiary (other
than a Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign
Subsidiary) to deliver to the holders of the Notes a joinder to the Subsidiary
Guaranty and to deliver the Collateral Agent a joinder to the Security Agreement
(in each case in the form contemplated thereby and with a copy to the holders of
the Notes) pursuant to which such Subsidiary agrees to be bound by the terms and
provisions thereof, such Subsidiary Guaranty and the Security Agreement to be
accompanied by appropriate corporate resolutions, other corporate documentation
and legal opinions in form and substance reasonably satisfactory to the Required
Holders and the Collateral Agent.
17
(ii) The
Company will cause, and will cause each other Credit Party to cause, all of its
owned property (whether real, personal, tangible, intangible, or mixed) to be
subject at all times (subject to clauses (1) and (2) of the last sentence of
this paragraph 5I(ii)) to first priority, perfected Liens in favor of the
Collateral Agent for the benefit of the Secured Parties to secure the Secured
Obligations in accordance with the terms and conditions of the Collateral
Documents, subject in any case to Liens permitted by paragraph
6B. Without limiting the generality of the foregoing, the Company (a)
will cause the Applicable Pledge Percentage of the issued and outstanding Equity
Interests of each Pledge Subsidiary directly owned by the Company or any other
Credit Party to be subject at all times to a first priority, perfected Lien in
favor of the Collateral Agent to secure the Secured Obligations in accordance
with the terms and conditions of the Collateral Documents or such other pledge
and security documents as the Collateral Agent shall
reasonably request and (b) will, and will cause each Subsidiary Guarantor to,
deliver Mortgages and Mortgage Instruments with respect to real property owned
by the Company or such Guarantor to the extent, and within such time period as
is, reasonably required by the Collateral Agent. Notwithstanding the
foregoing, (1) no such Mortgages and Mortgage Instruments are required to be
delivered hereunder until August 30, 2010 or such later date as the Collateral
Agent may
agree in the exercise of its reasonable discretion with respect thereto and (2)
no such pledge agreement in respect of the Equity Interests of a Foreign
Subsidiary shall be required hereunder (A) until August 30, 2010 or such later
date as the Collateral Agent may agree in the exercise of its reasonable
discretion with respect thereto, and (B) to the extent the Collateral Agent or
its counsel determines that such pledge would not, in light of the cost and
expense associated therewith, provide material credit support for the benefit of
the Secured Parties pursuant to legally valid, binding and enforceable pledge
agreements.
(iii) Without
limiting the foregoing, the Company will, and will cause each Subsidiary to,
execute and deliver, or cause to be executed and delivered, to the Collateral
Agent such documents, agreements and instruments, and will take or cause to be
taken such further actions (including the filing and recording of financing
statements, fixture filings, Mortgages, deeds of trust and other documents and
such other actions or deliveries of the type required by paragraph 3A, as
applicable), which may be required by law or which the Collateral Agent may,
from time to time, reasonably request to carry out the terms and conditions of
this Agreement and the other Note Documents and to ensure perfection and
priority of the Liens created or intended to be created by the Collateral
Documents, all at the expense of the Company.
(iv) If
any assets (including any real property or improvements thereto or any interest
therein) are acquired by a Credit Party after the Initial Closing Day (other
than assets constituting Collateral under the Security Agreement that become
subject to the Lien under the Security Agreement upon acquisition thereof), the
Company will notify the Collateral Agent and the holders of the Notes thereof,
and, if requested by the Required Holders, the Company will cause such assets to
be subjected to a Lien securing the Secured Obligations and will take, and cause
the other Credit Parties to take, such actions as shall be necessary or
reasonably requested by the Collateral Agent to grant and perfect such Liens,
including actions described in paragraph (iii) of this paragraph, all at the
expense of the Company.
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5J. Most Favored Lender
Status.
(i) If
any Credit Document or Permitted Private Placement Document contains one or more
Additional Covenants or Additional Defaults, then the terms of this Agreement,
without any further action on the part of the Company or the holders of the
Notes, will unconditionally be deemed on the date of execution of any such
amendment or other modification to be automatically amended to include each such
Additional Covenant or Additional Default, as the case may be, together with all
definitions relating thereto, and any event of default in respect of any such
additional or more restrictive covenant(s) so included therein shall be deemed
to be an Event of Default under paragraph 7A(v), subject to all applicable terms
and provisions of this Agreement, including, without limitation, all grace
periods, all limitations in application, scope or duration, and all rights and
remedies exercisable by the holders of the Notes hereunder. The Company
further covenants to promptly execute and deliver at its expense (including the
reasonable fees and expenses of counsel for the holders of the Notes) an
amendment to this Agreement in form and substance satisfactory to the Required
Holder(s) evidencing the amendment of this Agreement to include such Additional
Covenants and Additional Defaults, provided that the
execution and delivery of such amendment shall not be a precondition to the
effectiveness of such amendment as provided for in this paragraph 5J, but shall
merely be for the convenience of the parties hereto.
(ii) If, after the date of execution of any amendment
or modification of any of the Credit Documents or
the Permitted Private Placement Documents containing one or more
Additional Covenants or Additional Defaults that results in the amendment or
deemed amendment of this Agreement as contemplated in paragraph 5J(i), the
subject Additional Covenant or Additional Default is excluded, terminated,
loosened, relaxed, amended or otherwise modified under such agreement, or such
agreement containing such Additional Covenant or Additional Default itself is
terminated and not replaced, then such Additional Covenant or Additional
Default, without any further action on the part of the Company or the holders of
the Notes, shall unconditionally be deemed on the date of execution of any such
amendment or modification to then and thereupon be so excluded, terminated,
loosened, relaxed or otherwise amended or modified under this Agreement and
paragraph 7A(v) shall be modified accordingly, or if such agreement containing
such Additional Covenant or Additional Default itself is terminated and not
replaced, such Additional Covenant or Additional Default shall be deemed on the
date of such termination to be no longer effective under this Agreement, and
this Agreement shall be deemed modified accordingly; provided that (a) if
a Default or Event of Default (including as a result of the incorporation herein
of any such Additional Covenant or Additional Default) shall exist at the time
any such Additional Covenant or Additional Default is to be so excluded,
terminated, loosened, relaxed, amended or modified under this Agreement pursuant
to this paragraph 5J(ii)), the prior written consent thereto of the Required
Holders shall be required as a condition to the exclusion, termination,
loosening, relaxation or other amendment or modification of any such Additional
Covenant or Additional Default for so long as such Default or Event of Default
continues to exist; (b) in any and all events, the affirmative and negative
covenants and related definitions and Events of Default contained in this
Agreement as in effect on the date of this Agreement or as subsequently amended
(other than pursuant to operation of paragraph 5J(i)) shall not in any event be
deemed or construed to be excluded, terminated, loosened or relaxed by operation
of the terms of this paragraph 5J(ii), and only any such Additional Covenant or
Additional Default included pursuant to paragraph 5J(i) shall be so excluded,
terminated, loosened, relaxed, amended or otherwise modified pursuant to the
terms hereof; and (c) in no event shall any Additional Covenant or Additional
Default as in effect on the date of this Agreement or as subsequently amended
(other than pursuant to operation of paragraph 5J(i)) be deemed or construed to
be excluded, terminated, loosened or relaxed pursuant to this paragraph 5J(ii)
in a manner that would cause such Additional Covenant or Additional Default to
be excluded, terminated, loosened, relaxed, amended or otherwise made less
restrictive than as in effect on the date of this Agreement or as subsequently
amended (other than pursuant to operation of paragraph 5J(i)). The
Required Holders will promptly execute and deliver at the Company’s expense
(including the reasonable fees and expenses of counsel for the
holders of the Notes) an amendment to this Agreement in form and substance
satisfactory to the Required Holder(s) evidencing the amendment of this
Agreement to remove such Additional Covenants and Additional Defaults, provided that the
execution and delivery of such amendment shall not be a precondition to the
effectiveness of such amendment as provided for in this paragraph 5J, but shall
merely be for the convenience of the parties hereto.
19
5K. Information Required by Rule
144A. The Company 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 Agreement, the term “qualified institutional buyer”
shall have the meaning specified in Rule 144A under the Securities
Act.
5L. Covenant to Secure Notes
Equally. The Company will, if it or any Subsidiary shall
create or assume any Lien upon any of its property or assets, whether now owned
or hereafter acquired, other than Liens permitted by the provisions of paragraph
6B (unless prior written consent to the creation or assumption thereof shall
have been obtained pursuant to paragraph 11C), make or cause to be made
effective provision whereby the Notes will be secured by such Lien equally and
ratably with any and all other Indebtedness thereby secured so long as any such
other Indebtedness shall be so secured; provided that the
creation and maintenance of such equal and ratable Lien shall not in any way
limit or modify the right of the holders of the Notes to enforce the provisions
of paragraph 6B.
20
5M. Guaranteed Obligations. The
Company covenants that if any Person (other than the Company) guarantees or
provides collateral in any manner for any Credit Document Obligations or
Permitted Private Placement Obligations (other than cash collateral posted with
respect to letters of credit issued under the Credit Agreement in connection
with the termination of such Credit Agreement at a time when no Default or Event
of Default has occurred and is continuing in an amount not to exceed 105% of the
stated amount of outstanding letters of credit issued under the Credit
Agreement), it will simultaneously cause such Subsidiary to guarantee the
Obligations pursuant to documentation in form and substance reasonably
satisfactory to the holders of the Notes or provide collateral for the Notes
equally and ratably with all such Indebtedness by such Subsidiary (i) becoming a
party to the Security Agreement or (ii) entering into such other documentation
in form and substance reasonably satisfactory to the Required Holders as may be
necessary to provide such collateral as security for the Notes if the joinder of
such Subsidiary to the Security Agreement is not sufficient to do
so.
5N. Post-Closing. No later than
June 30, 2010, the Company will deliver to the holders of the Notes
documentation from PNC Bank, in form and substance reasonably satisfactory to
the holders of the Notes, confirming the release of any security interest of PNC
Bank in any patents of the Loan Parties currently shown to be assigned to PNC
Bank on the records of the United States Patent and Trademark Office and the
reassignment of such patents to the relevant Loan Parties.
6.
COVENANTS. During
the Issuance Period and so long thereafter as any Note or any amount owing under
this Agreement is outstanding and unpaid, the Company covenants as
follows:
6A.
Indebtedness. The
Company will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Indebtedness, except:
(i) the
Obligations and any Permitted Private Placement Obligations;
(ii) the
Credit Document Obligations so long as the aggregate principal or committed
amount thereof does not exceed $160,000,000;
(iii) Indebtedness
existing on the date hereof and set forth in Schedule 6A and
amendments, modifications, extensions, refinancings, renewals and replacements
of any such Indebtedness with Indebtedness of a similar type that does not
increase the outstanding principal amount thereof;
(iv) Indebtedness
under any Permitted Intercompany Transaction, so long as such Indebtedness is
pledged in accordance with the Security Agreement;
(v) Guarantees
by the Company of Indebtedness of any Domestic Subsidiary (other than a Domestic
Subsidiary which is owned by a Foreign Subsidiary) and by any Subsidiary of
Indebtedness of the Company or any other Domestic Subsidiary (other than a
Domestic Subsidiary which is owned by a Foreign Subsidiary), including without
limitation the Guarantee of the Credit Document Obligations and Permitted
Private Placement Obligations of the Company;
21
(vi) unsecured
Indebtedness (consisting of intercompany loans or capital contributions) of the
Company or any Subsidiary owing to the Company or another Subsidiary, including
any intercompany loans or capital contributions made to finance Permitted
Acquisitions) so long as such Indebtedness is pledged in accordance with the
Security Agreement;
(vii) Indebtedness
of the Company or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations, and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof, and amendments, modifications, extensions,
refinancings, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided that (a)
such Indebtedness is incurred prior to or within ninety (90) days after such
acquisition or the completion of such construction or improvement and (b) the
aggregate outstanding principal amount of Indebtedness permitted by this clause
(vii) shall not exceed $5,000,000 at any time outstanding;
(viii) Indebtedness
of the Company or any Subsidiary as an account party in respect of trade letters
of credit;
(ix) Indebtedness
of the Company or any Subsidiary (not otherwise permitted by this paragraph 6A)
secured by a Lien on any asset of the Company or any Subsidiary; provided that (x) the
aggregate outstanding principal amount of Indebtedness permitted by this clause
(ix) shall not in the aggregate exceed $3,000,000 at any time and (y) no
Indebtedness of any Foreign Subsidiary or Domestic Subsidiary of any Foreign
Subsidiary secured by a Lien on any asset of the Company or any Guarantor shall
be permitted under this clause (ix);
(x) unsecured
Indebtedness not otherwise permitted by this paragraph 6A in an aggregate
principal amount not exceeding $25,000,000 at any time outstanding;
(xi) Indebtedness
of any Foreign Subsidiary so long as (a) no Default has occurred and is
continuing or would arise after giving effect thereto, (b) the Company and the
Subsidiaries are in compliance, on a pro forma basis reasonably acceptable to
the Required Holders after giving effect to such Indebtedness, with the
covenants contained in paragraph 6L recomputed as of the last day of the most
recently ended fiscal quarter of the Company for which financial statements are
available, as if such Indebtedness (amortized over the applicable testing period
in accordance with its terms) had occurred on the first day of each relevant
period and (c) such Indebtedness is not guaranteed by the Company or any
Domestic Subsidiary;
22
(xii) unfunded
pension fund and other employee benefit plan obligations and liabilities to the
extent they are permitted to remain unfunded under applicable law;
(xiii) unsecured
Subordinated Indebtedness, and unsecured Indebtedness, consisting of Earnouts,
in each case, incurred by the Company and its Subsidiaries to finance the
purchase price of a Permitted Acquisition at the time of closing of such
Permitted Acquisition;
(xiv) Indebtedness
of the Company or any Subsidiary in respect of performance bonds, bid bonds,
appeal bonds, surety bonds and similar obligations, in each case provided in the
ordinary course of business;
(xv) Swap
Agreements permitted by paragraph 6F;
(xvi) Indebtedness
consisting of (a) deferred payments of insurance premiums incurred in the
ordinary course of business of the Company or any Subsidiary and (b) take-or-pay
obligations contained in any supply agreement entered into in the ordinary
course of business; and
(xv) Indebtedness
permitted under paragraph 6D.
Notwithstanding
the foregoing, in no event shall the aggregate principal amount of Indebtedness
of Subsidiaries that are not Subsidiary Guarantors, together with the aggregate
amount of assets sold and leased back by Subsidiaries that are not Subsidiary
Guarantors, exceed at any time 15% of Consolidated Total Assets.
6B. Liens. The Company
will not, and will not permit any Subsidiary to, create, incur, assume or permit
to exist any Lien on any property or asset now owned or hereafter acquired by
it, or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:
(i)
Liens securing the Obligations and, to the extent the Obligations are secured
pari passu therewith pursuant to the Intercreditor Agreement, all other Secured
Obligations;
(ii) Permitted
Encumbrances;
(iii) any
Lien on any property or asset of the Company or any Subsidiary existing on the
date hereof and set forth in Schedule 6B, and any amendments, modifications,
extensions, refinancings, renewals and replacements thereof; provided that (i)
such Lien shall not apply to any other property or asset of the Company or any
Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date hereof and amendments, modifications, extensions,
refinancings, renewals and replacements thereof that are permitted by paragraph
6A(iii);
23
(iv) any
Lien existing on any property or asset prior to the acquisition thereof by the
Company or any Subsidiary or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof prior to the time such Person
becomes a Subsidiary; provided that (a) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, as the case may be, (b) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary and (c) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be, and
amendments, modifications, extensions, refinancings, renewals and replacements
thereof that do not increase the outstanding principal amount
thereof;
(v) Liens
on fixed or capital assets (including capital leases) acquired, constructed or
improved by the Company or any Subsidiary; provided that (a) such security
interests secure Indebtedness or Capital Lease Obligations permitted by clause
(vii) of paragraph 6A, (b) such security interests and the Indebtedness secured
thereby are incurred prior to or within ninety (90) days after such acquisition
or the completion of such construction or improvement, (c) the Indebtedness
secured thereby does not exceed the cost of acquiring, constructing or improving
such fixed or capital assets and (d) such security interests shall not apply to
any other property or assets of the Company or any Subsidiary;
(vi) Liens
on assets of Foreign Subsidiaries securing Indebtedness of Foreign Subsidiaries
permitted under paragraph 6A(xi);
(vii) Liens
granted by a Subsidiary that is not a Credit Party in favor of the Company or
another Credit Party in respect of Indebtedness owed by such Subsidiary to the
Company or such other Credit Party;
(viii) licenses
and sublicenses of intellectual property to the extent permitted under this
Agreement;
(ix) Liens
arising out of any conditional sale, title retention, consignment or other
similar arrangements for the sale of goods entered into by the Company or any of
its Subsidiaries in the ordinary course of business to the extent such Liens do
not attach to any assets other than the goods subject to such
arrangements;
(x) Liens
pursuant to insurance premium financing arrangements securing insurance proceeds
solely to the extent of such premiums;
24
(xi) Liens
in favor of collecting banks having a right of setoff, revocation, refund or
chargeback with respect to money or instruments of the Company or any of its
Subsidiaries on deposits with or in possession of such banks, other than
relating to Indebtedness;
(xii) Liens
(a) in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods and
(b) incurred in the ordinary course of business in connection with the purchase
or shipping of goods or assets (or the related assets and proceeds thereof),
which Liens are in favor of the seller or shipper of such goods or assets and
only attached to such goods or assets;
(xiii) Liens
solely on any cash earnest money deposits made by the Company or any of its
Subsidiaries in connection with any letter of intent or purchase agreement
relating to a Permitted Acquisition;
(xiv) Liens
on assets of the Company and its Domestic Subsidiaries not otherwise permitted
above so long as the aggregate principal amount of the Indebtedness and other
obligations subject to such Liens does not at any time exceed
$3,000,000.
6C. Fundamental
Changes.
(i)
The Company will not, and will not permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Event of Default shall
have occurred and be continuing or would exist on a pro forma basis under
paragraph 6L (recomputed as of the last day of the most recently ended fiscal
quarter of the Company for which financial statements are available, as if such
Indebtedness (amortized over the applicable testing period in accordance with
its terms) had occurred on the first day of each relevant period):
(a) any
Person may merge into the Company in a transaction in which the Company is the
surviving corporation;
(b) any
Subsidiary may merge into a Credit Party in a transaction in which the surviving
entity is such Credit Party (provided that any such merger involving the Company
must result in the Company as the surviving entity);
(c) any
Subsidiary that is not a Credit Party may liquidate or dissolve if the Company
determines in good faith that such liquidation or dissolution is in the best
interests of the Company and is not materially disadvantageous to the holders of
the Notes;
25
(d) any
Subsidiary that is not a Credit Party may merge into any other Subsidiary that
is not a Credit Party;
(e) any
Subsidiary that is a Credit Party may dispose of all or substantially all of its
assets to another Credit Party;
(f) any
Subsidiary that is not a Credit Party may dispose of all or substantially all of
its assets to (1) another subsidiary that is not a Credit Party or (2) a Credit
Party;
(g) the
Company or any Subsidiary may engage in Permitted Acquisitions; and
(h) any
Subsidiary that is a Credit Party may liquidate or dissolve if (1) the Company
determines in good faith that such liquidation or dissolution is in the best
interests of the Company and is not materially disadvantageous to the holders of
the Notes, (2) immediately prior to such liquidation or dissolution, all the
Equity Interests in such Subsidiary are owned directly by one or more Credit
Parties and (3) all the assets of such Subsidiary are transferred to the Credit
Party or Credit Parties that directly own all the Equity Interests in such
Subsidiary pursuant to such liquidation or dissolution.
(ii) The
Company will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by
the Company and its Subsidiaries on the date of execution of this Agreement and
businesses reasonably related or ancillary thereto.
(iii) The
Company will not, nor will it permit any of its Subsidiaries to, change its
fiscal year from the basis in effect on the Initial Closing Day.
6D. Investments, Loans, Advances,
Guarantees and Acquisitions. The Company will not, and will
not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger) any capital stock, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any Person or any assets of any other Person
constituting a business unit, except:
(i) Permitted
Investments;
26
(ii)
Permitted Acquisitions;
(iii) in
connection with any Permitted Acquisition, investments by any Credit Party in,
and loans or advances made by any Credit Party to, any Subsidiary that is not a
Credit Party; provided that (a) the proceeds of such investments and loans or
advances shall be used for the sole purpose of paying the consideration for such
Permitted Acquisition and (b) the aggregate amount of all such investments and
loans or advances made in connection with any Permitted Acquisition shall not
exceed the aggregate consideration for such Permitted Acquisition;
(iv) investments
by the Company and each of its Subsidiaries existing on the date hereof in the
capital stock of their respective Subsidiaries;
(v) investments
in existence on the date hereof and described in Schedule 6D;
(vi) investments
in the form of Swap Agreements permitted by paragraph 6F;
(vii) investments
constituting deposits described in clauses (iii) and (iv) of the definition of
the term “Permitted Encumbrances”;
(viii) investments,
loans or advances (including, without limitation, capital contributions) made by
the Company in or to any Subsidiary and made by any Subsidiary in or to the
Company or any other Subsidiary;
(ix) Guarantees
constituting Indebtedness permitted by paragraph 6A;
(x) any
other investment, loan or advance (other than acquisitions) so long as the
aggregate amount (at original cost) of all such investments, loans and advances
does not exceed $2,000,000 at any time outstanding;
(xi) investments
comprised of notes payable, stock or other securities issued by account debtors
to the Company or any Subsidiary pursuant to negotiated agreements with respect
to settlement of such account debtor’s accounts in the ordinary course of
business;
(xii) extensions
of trade credit or the holding of receivables in the ordinary course of
business;
(xiii) Permitted
Intercompany Transactions;
27
(xiv) the
purchase, redemption, retirement, acquisition, cancellation or termination of
any Equity Interest of the Company or any option, warrant or other right to
acquire any such Equity Interests in the Company, in each case, to the extent
the payment therefor is permitted under paragraph 6H;
(xv) the
Company and its Subsidiaries may make loans and advances to officers, directors
and employees for moving, entertainment, travel and other similar expenses in
the ordinary course of business not to exceed $500,000 in the aggregate at any
time outstanding; and
(xvi) any
other investment by the Company or any Subsidiary in any Person; provided that
(a) no Event of Default has occurred and is continuing or would arise after
giving effect thereto, (b) such Person is engaged in the same or a similar line
of business as the Company and the Subsidiaries or a business reasonably related
thereto and (c) the aggregate amount of all such investments (at original cost)
does not exceed $20,000,000 at any time outstanding.
6E. Asset Sales. The
Company will not, nor will it permit any of its Subsidiaries to, sell, transfer,
lease or otherwise dispose of any asset, including any Equity Interests owned by
it, nor will the Company permit any Subsidiary to issue any additional Equity
Interests in such Subsidiary (other than to the Company or another Subsidiary in
compliance with paragraph 6D), except:
(i)
any Subsidiary may sell, transfer, lease, license or otherwise dispose of its
assets to a Credit Party;
(ii) any
Credit Party may sell, transfer, lease, license or otherwise dispose of its
assets to any Foreign Subsidiary for consideration equal to the fair market
value of such assets;
(iii) the
Company and its Subsidiaries may (a) sell inventory in the ordinary course of
business, (b) effect sales, trade-ins, conveyances or dispositions of used,
obsolete, worn out or surplus equipment, fixtures, other tangible property or
real estate, (c) dispose of assets in an aggregate amount not to exceed $500,000
in any fiscal year to any Persons that have tax-exempt status and are eligible
to receive tax-deductible charitable contributions, as determined by a letter
from the Internal Revenue Service recognizing such Persons as tax-exempt, and
(d) make any other sales, transfers, conveyances, leases or dispositions of
equipment, fixtures, real estate or other property having a value not exceeding
$2,000,000 in any single transaction or that, together with all other equipment,
fixtures, real estate or other property of the Company and its Subsidiaries
previously leased, sold or disposed of as permitted by this clause (d) during
any fiscal year of the Company, does not exceed $5,000,000;
28
(iv) licenses
and sublicenses of technology and intellectual property in the ordinary course
of business;
(v) leases
and subleases of real property no longer used by the Company or its
Subsidiaries;
(vi) dispositions
permitted by paragraph 6C;
(vii) Restricted
Payments permitted by paragraph 6H;
(viii) dispositions
of accounts receivable in connection with the compromise, settlement or
collection thereof in the ordinary course of business;
(ix) dispositions
resulting from any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Company or any Subsidiary;
(x) dispositions
of assets, so long as (a) the net cash proceeds received by the Company or any
Subsidiary from each such disposition are applied by the Company or such
Subsidiary, as applicable, within one hundred eighty (180) days of receipt to
acquire assets that are similar to the assets disposed of and (b) so long as no Event of Default has occurred and is
continuing prior to making such disposition or would arise after giving effect
thereto on a Pro Forma Basis;
(xi) dispositions
of Permitted Investments in the ordinary course of business so long as no Event of Default has occurred and is
continuing prior to making such disposition or would arise after giving effect
thereto on a Pro Forma Basis;
(xii) dispositions
of real property, so long as no Event of Default
has occurred and is continuing prior to making such disposition or would arise
after giving effect thereto on a Pro Forma Basis; and
(xiii) Permitted
Intercompany Transactions;
provided, that all
dispositions of assets permitted hereby (other than those permitted by
paragraphs (i), (iii)(c), (viii), (ix) and (x) above) shall be made for fair
market value of such assets.
To the
extent the Required Holders (or if applicable, to each holder of any Note) waive
the provisions of this paragraph 6E with respect to the sale or other
disposition of any Collateral, or any Collateral is sold or otherwise disposed
of as permitted by this paragraph 6E, such Collateral (unless transferred to the
Company or a Subsidiary Guarantor) shall (except as otherwise provided above) be
sold or otherwise disposed of free and clear of the Liens created by the Note
Documents and the holders of the Notes shall take such actions (including,
without limitation, directing the Collateral Agent to take such actions) as are
appropriate in connection therewith to release any such Lien.
29
6F. Swap
Agreements. The Company will not, and will not permit any of
its Subsidiaries to, enter into any Swap Agreement, except (i) Swap Agreements
entered into to hedge or mitigate risks to which the Company or any Subsidiary
has actual exposure (other than those in respect of Equity Interests of the
Company or any of its Subsidiaries), and (ii) Swap Agreements entered into in
order to effectively cap, collar or exchange interest rates (from fixed to
floating rates, from one floating rate to another floating rate or otherwise)
with respect to any interest-bearing liability or investment of the Company or
any Subsidiary.
6G. Transactions with
Affiliates. The Company will not, and will not permit any of
its Subsidiaries to, sell, lease or otherwise transfer any property or assets
to, or purchase, lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
(i) transactions that are (a) in the ordinary course of business and (b) at
prices and on terms and conditions not less favorable to the Company or such
Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties, (ii) transactions between or among the Company and its wholly-owned
Subsidiaries not involving any other Affiliate, (iii) any Restricted Payment
permitted by paragraph 6H, (iv) the payment of reasonable fees to directors of
the Company or any Subsidiary, and compensation and employee benefit
arrangements paid to, and indemnities provided for the benefit of, directors,
officers or employees of the Company or the Subsidiaries in the ordinary course
of business, and (v) transactions among the Company and its Affiliates to the
extent (a) permitted under paragraphs 6A, 6B, 6C, 6D and 6E and (b) at prices
and on terms and conditions not less favorable to the Company or its
Subsidiaries than could be obtained on an arm’s-length basis from unrelated
third parties.
6H.
Restricted
Payments. The Company will not, and will not permit any of its
Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except (i) the Company and each Subsidiary
may declare and pay dividends with respect to its Equity Interests payable
solely in additional shares of its common stock, (ii) any Subsidiary may make
dividends and distributions to any Person that owns a direct Equity Interest in
such Subsidiary, ratably according to their respective holdings of the type of
Equity Interest in respect of which such Restricted Payment is being made, (iii)
the Company and its Subsidiaries may make Restricted Payments pursuant to and in
accordance with stock option plans or other benefit plans for management or
employees of the Company and its Subsidiaries, (iv) the Company and its
Subsidiaries may make any other Restricted Payment so long as no Default or
Event of Default has occurred and is continuing prior to making such Restricted
Payment or would arise after giving effect (including giving effect on a Pro
Forma Basis) thereto and the aggregate amount of all such Restricted Payments
made pursuant to this clause (iv) during the term of this Agreement does not
exceed $15,000,000, and (v) Permitted Intercompany Transactions.
30
6I. Restrictive
Agreements. The Company will not, and
will not permit any of its Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (i) the ability of the Company or any
Subsidiary to create, incur or permit to exist any Lien upon any of its property
or assets, or (ii) the ability of any Subsidiary to pay dividends or other
distributions with respect to holders of its Equity Interests or to make or
repay loans or advances to the Company or any other Subsidiary or to Guarantee
Indebtedness of the Company or any other Subsidiary; provided that (a) the
foregoing shall not apply to restrictions and conditions imposed by law, by any
Note Document and, to the extent such restrictions and conditions do not
restrict or prevent Liens securing the Obligations on at least a pari passu
basis with the other Secured Obligations, by the Credit Documents or any
Permitted Private Placement Documents, (b) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on Schedule 6I (but shall apply to any
extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition), (c) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (d) clause (i) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (e) clause (i)
of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof and/or, with respect to leases of
real property, restricting the placement of a lien on the leasehold interest
therein, and (f) customary arrangements containing restrictions with respect to
Foreign Subsidiaries in connection with financing arrangements for their benefit
that are not otherwise prohibited by this Agreement.
6J. Subordinated Indebtedness and
Amendments to Subordinated Indebtedness Documents.
The
Company will not, and will not permit any Subsidiary to voluntarily prepay,
defease, purchase, redeem, retire or otherwise acquire, any Subordinated
Indebtedness or any Indebtedness from time to time outstanding under the
Subordinated Indebtedness Documents, except refinancings of Subordinated
Indebtedness to the extent permitted by paragraph 6A and regularly scheduled or
required repayments or redemptions of Subordinated Indebtedness set forth on
Schedule 6A.
Furthermore,
the Company will not, and will not permit any Subsidiary to, amend the
Subordinated Indebtedness Documents or any document, agreement or instrument
evidencing any Indebtedness incurred pursuant to the Subordinated Indebtedness
Documents (or any replacements, refinancings, substitutions, extensions or
renewals thereof) or pursuant to which such Indebtedness is issued where such
amendment, modification or supplement provides for the following or which has
any of the following effects:
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(i)
increases
the overall principal amount of any such Indebtedness or increases the amount of
any single scheduled installment of principal or interest;
(ii) shortens
or accelerates the date upon which any installment of principal or interest
becomes due or adds any additional mandatory redemption provisions;
(iii) shortens
the final maturity date of such Indebtedness or otherwise accelerates the
amortization schedule with respect to such Indebtedness;
(iv) increases
the rate of interest accruing on such Indebtedness;
(v) provides
for the payment of additional fees or increases existing fees;
(vi) amends
or modifies any financial or negative covenant (or covenant which prohibits or
restricts the Company or any Subsidiary from taking certain actions) or event of
default in a manner which is more onerous or more restrictive in any material
respect to the Company or such Subsidiary or which is otherwise materially
adverse to the Company, any Subsidiary and/or the holders of the Notes or, in
the case of any such covenant or event of default, which places material
additional restrictions on the Company or such Subsidiary or which requires the
Company or such Subsidiary to comply with more restrictive financial ratios or
which requires the Company to better its financial performance, in each case
from that set forth in the existing applicable covenants in the Subordinated
Indebtedness Documents or the applicable covenants and events of default in this
Agreement; or
(vii) amends,
modifies or adds any affirmative covenant in a manner which (a) when taken as a
whole, is materially adverse to the Company, any Subsidiary and/or the holders
of the Notes or (b) is more onerous than the existing applicable covenant in the
Subordinated Indebtedness Documents or the applicable covenant in this
Agreement.
6K. Sale and Leaseback
Transactions. The Company shall not, nor shall it
permit any Domestic Subsidiary (other than a Domestic Subsidiary that is owned
directly or indirectly by a Foreign Subsidiary of the Company) to, enter into
any Sale and Leaseback Transaction, other than Sale and Leaseback Transactions
in respect of which the net cash proceeds received in connection therewith does
not exceed $2,000,000 in the aggregate during any fiscal year of the Company,
determined on a consolidated basis for the Company and its
Subsidiaries. Notwithstanding the foregoing, in no event shall the
aggregate principal amount of Indebtedness of Subsidiaries that are not
Subsidiary Guarantors, together with the aggregate amount of assets sold and
leased back by Subsidiaries that are not Subsidiary Guarantors, exceed at any
time 15% of Consolidated Total Assets.
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6L. Financial
Covenants.
(i) Maximum Leverage
Ratio. The Company will not permit the ratio (the “Leverage Ratio”), determined as of the
end of each of its fiscal quarters ending on and after March 31, 2010, of (i)
Consolidated Total Funded Indebtedness (less unrestricted cash maintained by the
Company or any Domestic Subsidiary in deposit accounts (as defined in Section
9-102 of the UCC) or in securities accounts (as defined in Section 8-501 of the
UCC), or any combination thereof, and which each such deposit account or
securities account is the subject of a control agreement in favor of the
Collateral Agent securing the Secured Obligations and is maintained by a branch
office of the bank or securities intermediary located within the United States)
to (ii) Consolidated EBITDA for the period of four (4) consecutive fiscal
quarters ending with the end of such fiscal quarter, all calculated for the
Company and its Subsidiaries on a consolidated basis, to be greater than 3.25 to
1.00.
(ii) Minimum Fixed Charge Coverage
Ratio. The Company will not permit the ratio (the “Fixed Charge Coverage Ratio”),
determined as of the end of each of its fiscal quarters ending on and after
March 31, 2010, of (i) Consolidated EBITDA minus (A) payments in respect of
Capital Expenditures and (B) payments of dividends by the Company to (ii) the
sum of (A) scheduled principal payments, (B) income taxes paid in cash and (C)
Consolidated Interest Expense, in each case for the period of four (4)
consecutive fiscal quarters ending with the end of such fiscal quarter, all
calculated for the Company and its Subsidiaries on a consolidated basis, to be
less than 1.20 to 1.00.
6M. Operating Lease
Expense. The Company will not permit
Operating Lease Expense for the period of four (4) consecutive fiscal quarters
ending with the last day of each of its fiscal quarters ending on and after
March 31, 2010 to exceed 2.50% of Consolidated Total Assets on the last day of
such fiscal quarter.
7. EVENTS OF
DEFAULT.
7A.
Acceleration If
any of the following events (“Events of
Default”) shall occur and be continuing for any reason
whatsoever (and whether such occurrence shall be voluntary or involuntary or
come about or be effected by operation of law or otherwise):
(i)
the Company fails to pay any principal of, or Yield- Maintenance Amount
with respect to, any Note when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment
thereof;
33
(ii) the
Company fails to pay any interest on any Note or any fee or any other amount
(other than an amount referred to in clause (i) of this paragraph 7A) payable
under this Agreement or any other Note Document, when and as the same shall
become due and payable, and such failure shall continue unremedied for a period
of five (5) days;
(iii) any
representation or warranty made or deemed made by or on behalf of the Company or
any Subsidiary in or in connection with this Agreement or any other Note
Document or any amendment or modification hereof or thereof or waiver hereunder
or thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or any other
Note Document or any amendment or modification thereof or waiver thereunder,
shall prove to have been incorrect when made or deemed made;
(iv)
the Company shall fail to observe or perform any covenant, condition
or agreement contained in paragraph 5B, 5C (with respect to the Company’s
existence), 5H, 5I or 5N or in paragraph 6;
(v)
the Company or any Subsidiary Guarantor, as applicable,
shall fail to observe or perform any covenant, condition or agreement contained
in this Agreement (other than those specified in clause (i), (ii) or (iv) of
this Article) or any other Note Document, and such failure shall continue
unremedied for a period of thirty (30) days after notice thereof from any holder
of any Note to the Company;
(vi) the
Company or any Subsidiary shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable, which is not cured within any
applicable grace period therefor;
(vii) any
event or condition occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits the holder or holders
of any Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (vii)
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(viii) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (a) liquidation, reorganization or other relief in respect of the
Company or any Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (b) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Company or any Subsidiary or for a substantial part of its assets, and, in any
such case, such proceeding or petition shall continue undismissed for sixty (60)
days or an order or decree approving or ordering any of the foregoing shall be
entered;
34
(ix) the
Company or any Subsidiary shall (a) voluntarily commence any proceeding or file
any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (b) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (viii) of this Article, (c) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Company or any Subsidiary or for a substantial part of its assets, (d)
file an answer admitting the material allegations of a petition filed against it
in any such proceeding, (e) make a general assignment for the benefit of
creditors or (f) take any action for the purpose of effecting any of the
foregoing;
(x) the
Company or any Subsidiary shall become unable, admit in writing its inability or
fail generally to pay its debts as they become due;
(xi) one
or more judgments for the payment of money in an aggregate amount in excess of
$2,000,000 (or its equivalent in another currency) shall be rendered against the
Company, any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of thirty (30) consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Company or any
Subsidiary to enforce any such judgment;
(xii) an
ERISA Event shall have occurred that, in the opinion of the Required Holders,
when taken together with all other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect;
(xiii) a
Change in Control shall occur;
(xiv) the
occurrence of any “default”, as defined in any Note Document (other than this
Agreement) or the breach of any of the terms or provisions of any Note Document
(other than this Agreement), which default or breach continues beyond any period
of grace therein provided;
(xv) any
material provision of any Note Document for any reason ceases to be valid,
binding and enforceable in accordance with its terms (or the Company or any
Subsidiary shall challenge the enforceability of any Note Document or shall
assert in writing, or engage in any action or inaction based on any such
assertion, that any provision of any of the Note Documents has ceased to be or
otherwise is not valid, binding and enforceable in accordance with its terms);
or
35
(xvi) any
Collateral Document shall for any reason fail to create a valid and perfected
first priority security interest in any portion of the Collateral purported to
be covered thereby, except as permitted by the terms of any Note
Document;
then (a)
if such event is an Event of Default specified in clause (i) or (ii) of this
paragraph 7A, any holder of any Note (other than the Company or any of its
Subsidiaries or Affiliates) may at its option, by notice in writing to the
Company, declare all of the Notes held by such holder to be, and all of the
Notes held by such holder shall thereupon be and become, immediately due and
payable at par together with interest accrued thereon, without presentment,
demand, protest or notice of any kind (including, without limitation, notice of
intent to accelerate), all of which are hereby waived by the Company, (b) if
such event is an Event of Default specified in clause (viii), (ix) or (x) of
this paragraph 7A with respect to the Company, all of the Notes at the time
outstanding shall automatically become immediately due and payable together with
interest accrued thereon and the Yield-Maintenance Amount, if any, with respect
to each Note, without presentment, demand, protest or notice of any kind
(including, without limitation, notice of intent to accelerate and notice of
acceleration of maturity), all of which are hereby waived by the Company, and
(c) with respect to any event constituting an Event of Default (including an
event described in clause (a) above), the Required Holder(s) of the Notes of any
Series may at its or their option, by notice in writing to the Company, declare
all of the Notes of such Series to be, and all of the Notes of such Series shall
thereupon be and become, immediately due and payable together with interest
accrued thereon and together with the Yield-Maintenance Amount, if any, with
respect to each Note of such Series, without presentment, demand, protest or
notice of any kind (including, without limitation, notice of intent to
accelerate), all of which are hereby waived by the Company.
The
Company acknowledges, and the parties hereto agree, that each holder of a Note
has the right to maintain its investment in the Notes free from repayment by the
Company (except as herein specifically provided for) and that the provision for
payment of the Yield-Maintenance Amount by the Company in the event that the
Notes are prepaid or are accelerated as a result of an Event of Default, is
intended to provide compensation for the deprivation of such right under such
circumstances.
36
7B. Rescission of
Acceleration. At any time after any or all of the Notes of any
Series shall have been declared immediately due and payable pursuant to
paragraph 7A, the Required Holder(s) of the Notes of such Series may, by notice
in writing to the Company, rescind and annul such declaration and its
consequences if (i) the Company shall have paid all overdue interest on the
Notes of such Series, the principal of and Yield-Maintenance Amount, if any,
payable with respect to any Notes of such Series which have become due otherwise
than by reason of such declaration, and interest on such overdue interest and
overdue principal and Yield-Maintenance Amount at the rate specified in the
Notes of such Series, (ii) the Company shall not have paid any amounts which
have become due solely by reason of such declaration, (iii) all Events of
Default and Defaults, other than non-payment of amounts which have become due
solely by reason of such declaration, shall have been cured or waived pursuant
to paragraph 11C, and (iv) no judgment or decree shall have been entered for the
payment of any amounts due pursuant to the Notes of such Series or this
Agreement. No such rescission or annulment shall extend to or affect
any subsequent Event of Default or Default or impair any right arising
therefrom.
7C. Notice of Acceleration or
Rescission. Whenever any Note shall be declared immediately
due and payable pursuant to paragraph 7A or any such declaration shall be
rescinded and annulled pursuant to paragraph 7B, the Company shall forthwith
give written notice thereof to the holder of each Note of each Series at the
time outstanding.
7D. Other Remedies. If
any Event of Default or Default shall occur and be continuing, the holder of any
Note may proceed to protect and enforce its rights under this Agreement and such
Note by exercising such remedies as are available to such holder in respect
thereof under applicable law, either by suit in equity or by action at law, or
both, whether for specific performance of any covenant or other agreement
contained in this Agreement or in aid of the exercise of any power granted in
this Agreement and may direct the Collateral Agent in accordance with the
Intercreditor Agreement to exercise on behalf of the holders of the Notes all
rights and remedies available to the holders of the Notes under the Collateral
Documents. No remedy conferred in this Agreement upon the holder of
any Note is intended to be exclusive of any other remedy, and each and every
such remedy shall be cumulative and shall be in addition to every other remedy
conferred herein or now or hereafter existing at law or in equity or by statute
or otherwise.
8. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants as follows (all references to
“Subsidiary” and “Subsidiaries” in this paragraph 8 shall be deemed omitted if
the Company has no Subsidiaries at the time the representations herein are made
or repeated):
37
8A. Organization; Powers;
Subsidiaries. Each of the Company and its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is
required. As of the Initial Closing Day, Schedule 8A hereto identifies each
Subsidiary, the jurisdiction of its incorporation or organization, as the case
may be, the percentage of issued and outstanding shares of each class of its
capital stock or other equity interests owned by the Company and the other
Subsidiaries and, if such percentage is not 100% (excluding directors’
qualifying shares as required by law), a description of each class issued and
outstanding. All of the outstanding shares of capital stock and other
equity interests of each Subsidiary Guarantor and each First-Tier Foreign
Subsidiary pledged to the Collateral Agent are validly issued and outstanding
and fully paid and nonassessable and, as of the Initial Closing Day, all such
shares and other equity interests indicated on Schedule 8A as owned by the Company or
a Subsidiary Guarantor are owned, beneficially and of record, by the Company or
any Subsidiary Guarantor, as the case may be, free and clear of all Liens, other
than Liens created under the Note Documents. As of the Initial
Closing Day, except as set forth on Schedule 8A, there are no outstanding
commitments or other obligations of the Company or any Subsidiary to issue, and
no options, warrants or other rights of any Person to acquire, any shares of any
class of capital stock or other equity interests of the Company or any
Subsidiary. None of the Dormant Subsidiaries conducts any business
activities or has any material assets.
8B. Authorization;
Enforceability. The Transactions are within each Credit
Party’s organizational powers and have been duly authorized by all necessary
organizational actions and, if required, actions by equity
holders. The Note Documents to which each Credit Party is a party
have been duly executed and delivered by such Credit Party and constitute a
legal, valid and binding obligation of such Credit Party, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
8C. Governmental Approvals; No
Conflicts. The Transactions (i) do not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in
full force and effect and except for filings necessary to perfect Liens created
pursuant to the Note Documents, (ii) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Company or any of its Subsidiaries or any order of any Governmental Authority,
(iii) will not violate or result in a default under any indenture, agreement or
other instrument binding upon the Company or any of its Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be made by
the Company or any of its Subsidiaries, and (iv) will not result in the creation
or imposition of any Lien on any asset of the Company or any of its
Subsidiaries, other than Liens created under the Note Documents.
38
8D. Financial Condition; No Material
Adverse Change. The Company has furnished Prudential with the
following financial statements: (i) consolidated balance sheets of the Company
and its subsidiaries as of March 31, 2009 and as of the last day in each of the
fiscal years completed thereafter and prior to the date as of which this
representation is made or repeated to such Purchaser (other than fiscal years
completed within 90 days prior to such date for which audited financial
statements have not been released), and consolidated statements of income and
cash flows of the Company and its Subsidiaries for each such year, all certified
by independent certified public accountants of recognized international
standing; and (ii) unaudited consolidated balance sheets of the Company and its
Subsidiaries as at the end of the quarterly period (if any) most recently
completed prior to such date and after the end of the most recent fiscal year
(other than quarterly periods completed within 45 days prior to such date for
which financial statements have not been released) and the comparable quarterly
period in the preceding fiscal year and unaudited consolidated statements of
income and cash flows of the Company and its Subsidiaries for the periods from
the beginning of the fiscal years in which such quarterly periods are included
to the end of such quarterly periods. Such financial statements
(including any related schedules and/or notes) have been prepared in accordance
with GAAP as in effect from time to time in the United States of America
(subject, as to interim statements, to changes resulting from year-end
adjustments) consistently applied throughout the periods involved and show all
liabilities, direct and contingent, of the Company and its Subsidiaries required
to be shown in accordance with such principles. The balance sheets
fairly present, in all material respects, the consolidated financial condition
of the Company and its Subsidiaries as at the dates thereof, and the statements
of income and cash flows fairly present, in all material respects, the
consolidated financial results of the operations of the Company and its
Subsidiaries and their cash flows for the periods indicated. Since
March 31, 2009, there has been no material adverse change in the business,
assets, operations or financial condition of the Company and its Subsidiaries,
taken as a whole.
8E. Properties.
(i) Each
of the Company and its Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business,
subject to Permitted Encumbrances and except for minor defects in title that do
not interfere with its ability to conduct its business as currently conducted or
to utilize such properties for their intended purposes.
(ii) Each
of the Company and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its
business, and the use thereof by the Company and its Subsidiaries, to Company’s
knowledge, does not infringe upon the rights of any other Person, except for any
such infringements that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
39
8F.
Litigation, Environmental and Labor
Matters.
(i)
Except as disclosed on Schedule 8F, there are no actions,
suits, proceedings or investigations by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (a) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (b) that involve this
Agreement or the Transactions.
(ii) Except
with respect to any matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Company nor any of its Subsidiaries (a) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (b) has become subject to
any Environmental Liability, (c) has received notice of any claim with respect
to any Environmental Liability or (d) knows of any basis for any Environmental
Liability.
(iii) There
are no strikes, lockouts or slowdowns against the Company or any of its
Subsidiaries pending or, to their knowledge, threatened. The hours
worked by and payments made to employees of the Company and its Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign law relating to such
matters. All material payments due from the Company or any of its
Subsidiaries, or for which any claim may be made against the Company or any of
its Subsidiaries, on account of wages and employee health and welfare insurance
and other benefits, have been paid or accrued as liabilities on the books of the
Company or such Subsidiary. The consummation of the Transactions will
not give rise to any right of termination or right of renegotiation on the part
of any union under any collective bargaining agreement under which the Company
or any of its Subsidiaries is bound.
8G. Compliance with Laws and
Agreements. Except as disclosed on Schedule 8G, each of the Company and
its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
8H. Investment Company
Status. Neither the Company nor any of its Subsidiaries is an
“investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.
8I. Taxes. Each of the
Company and its Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (i) Taxes that are being
contested in good faith by appropriate proceedings and for which the Company or
such Subsidiary, as applicable, has set aside on its books adequate reserves or
(ii) to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
40
8J. ERISA. No ERISA
Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to result in a Material Adverse
Effect. The execution and delivery of this Agreement and the issuance
and sale of the Notes will be exempt from or will not involve any transaction
which is subject to the prohibitions of section 406 of ERISA and will not
involve any transaction in connection with which a penalty could be imposed
under section 502(i) of ERISA or a tax could be imposed pursuant to section 4975
of the Code. The representation by the Company in the next preceding
sentence is made in reliance upon and subject to the accuracy of the
representation of each Purchaser in paragraph 9B as to the source of funds to be
used by it to purchase any Notes on which representations the Company may
rely.
8K. Disclosure. The
Company has disclosed to Prudential all agreements, instruments and corporate or
other restrictions to which it or any of its Subsidiaries is subject, and all
other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse
Effect. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or
on behalf of the Company or any Subsidiary to Prudential in connection with this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that, with respect to
projected financial information, the Company represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
8L. Federal Reserve
Regulations. No part of the proceeds of any Note have been
used or will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations T, U and X. The Company is not engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying “margin stock” (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System), and the
aggregate market value of all “margin stock” owned by the Company and its
Subsidiaries does not exceed 10% of the aggregate value of the assets thereof,
as determined by any reasonable method.
8M. Liens. There are no
Liens on any of the real or personal properties of the Company or any Subsidiary
except for Liens permitted by Section 6B.
8N.
No
Default. No Default or Event of Default has occurred and is
continuing.
41
8O.
No Burdensome
Restrictions. The Company is not subject to any Burdensome
Restrictions except Burdensome Restrictions permitted under paragraph
6I.
8P.
Solvency.
(i)
Immediately after the consummation of the Transactions
and the incurrence of Indebtedness under the Credit Agreement to occur on any
Closing Day, the Company and its Subsidiaries taken as a whole, are and will be
Solvent; after giving effect to the contribution rights among Credit Parties
contained in the Note Documents, each Credit Party (other than the Dormant
Subsidiaries) is Solvent.
(ii) The
Company does not intend to, nor will it permit any of its Subsidiaries to, and
the Company does not believe that it or any of its Subsidiaries will, incur
debts beyond its ability to pay such debts as they mature, taking into account
the timing of and amounts of cash to be received by it or any such Subsidiary
and the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
8Q. Insurance. The
Company maintains, and has caused each Subsidiary to maintain, with financially
sound and reputable insurance companies, insurance on all their real and
personal property in such amounts, subject to such deductibles and
self-insurance retentions and covering such properties and risks as are adequate
and customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
8R. Security Interest in
Collateral. The provisions of this Agreement and the other
Note Documents create legal and valid perfected Liens on all the Collateral in
favor of the Collateral Agent, for the benefit of the Secured Parties, and such
Liens constitute perfected Liens on the Collateral, securing the Secured
Obligations, enforceable against the applicable Credit Party and all third
parties, and having priority over all other Liens on the Collateral except in
the case of (i) Permitted Liens, to the extent any such Permitted Liens would
have priority over the Liens in favor of the holders of the Notes pursuant to
any applicable law and (ii) Liens perfected only by possession (including
possession of any certificate of title) to the extent the Collateral Agent has
not obtained or does not maintain possession of such Collateral.
8S. Offering of
Notes. Neither the Company nor any agent acting on its behalf
has, directly or indirectly, offered the Notes or any similar security of the
Company for sale to, or solicited any offers to buy the Notes or any similar
security of the Company from, or otherwise approached or negotiated with respect
thereto with, any Person other than the Purchaser(s) and not more than five
other Institutional Investors, and neither the Company nor any agent acting on
its behalf has taken or will take any action which would subject the issuance or
sale of the Notes to the provisions of Section 5 of the Securities Act or
to the provisions of any securities or Blue Sky law of any applicable
jurisdiction.
42
8T. Rule 144A. The
Notes are not of the same class as securities of the Company, if any, listed on
a national securities exchange, registered under Section 6 of the Exchange Act
or quoted in a U.S. automated inter-dealer quotation system.
8U. Foreign Assets Control Regulations,
etc.
(i)
Neither the sale of the 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.
(ii) Neither
the Company nor any Subsidiary (a) 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
(b) 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.
(iii) No
part of the proceeds from the sale of the Notes hereunder will be used, directly
or indirectly, for any payments to any governmental official or employee,
political party, official of a political party, candidate for political office,
or anyone else acting in an official capacity, in order to obtain, retain or
direct business or obtain any improper advantage, in violation of the United
States Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases
that such Act applies to the Company.
9.
REPRESENTATIONS OF THE
PURCHASERS.
Each
Purchaser represents as follows:
9A. Nature of
Purchase. Each Purchaser severally represents that it is
purchasing the Notes for its own account or for one or more separate accounts
maintained by such Purchaser or for the account of one or more pension or trust
funds and not with a view to the distribution thereof, provided that the disposition
of such Purchaser’s or their property shall at all times be within such
Purchaser’s or their control. Each Purchaser understands that the
Notes have not been registered under the Securities Act and may be resold only
if registered pursuant to the provisions of the Securities Act or if an
exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that the
Company is not required to register the Notes. Each Purchaser
severally represents that it is either (i) an “accredited investor” as defined
in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or
(ii) a qualified institutional buyer.
43
9B. 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 Notes to be purchased by such
Purchaser hereunder:
(i)
the Source is an “insurance company general account” (as the term is defined in
the United States Department of Labor’s Prohibited Transaction 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 National Association of Insurance
Commissioners (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
(ii)
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
(iii)
the Source is either (a) an insurance company pooled separate account, within
the meaning of PTE 90-1 or (b) a bank collective investment fund, within the
meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the
Company in writing pursuant to this clause (iii), 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
(iv)
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 (a) the
identity of such QPAM and (b) 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 (iv); or
44
(v)
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 (a) the
identity of such INHAM and (b) 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 (v); or
(vi)
the Source is a governmental plan; or
(vii)
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 (vii);
or
(viii)
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 paragraph 9B, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have
the respective meanings assigned to such terms in Section 3 of
ERISA.
10. DEFINITIONS; ACCOUNTING
MATTERS. For the purpose of this Agreement, the terms defined
in paragraphs 10A and 10B (or within the text of any other paragraph) shall have
the respective meanings specified therein and all accounting matters shall be
subject to determination as provided in paragraph 10C.
10A. Yield-Maintenance
Terms.
“Called Principal” shall mean,
with respect to any Note, the principal of such Note that is to be prepaid
pursuant to paragraph 4D or is declared to be immediately due and payable
pursuant to paragraph 7A, as the context requires.
45
“Discounted Value” shall mean,
with respect to the Called Principal of any Note, the amount obtained by
discounting all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the Settlement Date with
respect to such Called Principal, in accordance with accepted financial practice
and at a discount factor (as converted to reflect the periodic basis on which
interest on such Note is payable, if interest is payable other than on a
semi-annual basis) equal to the Reinvestment Yield with respect to such Called
Principal.
“Reinvestment Yield” shall
mean, with respect to the Called Principal of any Note, 0.50% over the yield to
maturity implied by (i) the yields reported as of 10:00 a.m. (New York City
time) on the Business Day next preceding the Settlement Date with respect to
such Called Principal, on the display designated as “Page PX1” (or such other
display as may replace Page PX1) on Bloomberg Financial Markets for the most
recently issued actively traded on the run U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal as of such
Settlement Date, or (ii) if such yields are not reported as of such time or
the yields reported as of such time are not ascertainable (including by way of
interpolation), the Treasury Constant Maturity Series Yields reported, for the
latest day for which such yields have been so reported as of the Business Day
next preceding the Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15 (or any comparable successor
publication) for U.S. Treasury securities having a constant maturity equal to
the Remaining Average Life of such Called Principal as of such Settlement
Date. The Reinvestment Yield shall be rounded to that number of
decimal places as appears in the interest rate of the applicable
Notes.
“Remaining Average Life” shall
mean, with respect to the Called Principal of any Note, the number of years
(calculated to the nearest one-twelfth year) obtained by dividing (i) such
Called Principal into (ii) the sum of the products obtained by multiplying (a)
each Remaining Scheduled Payment of such Called Principal (but not of interest
thereon) by (b) the number of years (calculated to the nearest one-twelfth year)
which will elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled
Payment.
“Remaining Scheduled Payments”
shall mean, with respect to the Called Principal of any Note, all scheduled
payments of such Called Principal and interest thereon that would be due on or
after the Settlement Date with respect to such Called Principal if no payment of
such Called Principal were made prior to its scheduled due date.
“Settlement Date” shall mean,
with respect to the Called Principal of any Note, the date on which such Called
Principal is to be prepaid pursuant to paragraph 4D or is declared to be
immediately due and payable pursuant to paragraph 7A, as the context
requires.
46
“Yield-Maintenance Amount”
shall mean, with respect to any Note, an amount equal to the excess, if any, of
the Discounted Value of the Called Principal of such Note over the sum of (i)
such Called Principal plus (ii) interest accrued thereon as of (including
interest due on) the Settlement Date with respect to such Called
Principal. The Yield-Maintenance Amount shall in no event be less
than zero.
10B. Other Terms.
“Acceptance” shall have the
meaning specified in paragraph 2B(5).
“Acceptance Day” shall have the
meaning specified in paragraph 2B(5).
“Acceptance Window” shall have
the meaning specified in paragraph 2B(5).
“Accepted Note” shall have the
meaning specified in paragraph 2B(5).
“Additional Covenant” shall
mean any affirmative or negative covenant or similar restriction applicable to
the Company or any Subsidiary contained in any of the Credit Documents or
Permitted Private Placement Documents (regardless of whether such provision is
labeled or otherwise characterized as a covenant) the subject matter of which
either (i) is similar to that of any covenant in paragraph 5 or 6 of this
Agreement, or related definitions in paragraph 10 of this Agreement, but
contains one or more percentages, amounts or formulas that is more restrictive
than those set forth herein or more beneficial to the holder or holders of the
Indebtedness created or evidenced by the Credit Document or Permitted Private
Placement Document, as applicable, in which such covenant or similar restriction
is contained than those set forth herein (and such covenant or similar
restriction shall be deemed an Additional Covenant only to the extent that it is
more restrictive or more beneficial) or (ii) is different from the subject
matter of any covenant in paragraph 5 or 6 of this Agreement, or related
definitions in paragraph 10 of this Agreement.
“Additional Default” shall mean
any provision contained in any Credit Document or Permitted Private Placement
Document of the Company or any Subsidiary which permits the holder or holders of
such Indebtedness to accelerate (with the passage of time or giving of notice or
both) the maturity thereof or otherwise requires the Company or any Subsidiary
to purchase such Indebtedness prior to the stated maturity thereof and which
either (i) is similar to any Default or Event of Default contained in paragraph
7 of this Agreement, or related definitions in paragraph 10 of this Agreement,
but contains one or more percentages, amounts or formulas that is more
restrictive or has a shorter grace period than those set forth herein or is more
beneficial to the holders of such other Indebtedness than those set forth herein
(and such provision shall be deemed an Additional Default only to the extent
that it is more restrictive, has a shorter grace period or is more beneficial)
or (ii) is different from the subject matter of any Default or Event of Default
contained in paragraph 7 of this Agreement, or related definitions in paragraph
10 of this Agreement.
47
“Affiliate” shall mean, with
respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
“Anti-Terrorism Order” shall
mean Executive Order No. 13224 of September 24, 2001, Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.
“Applicable Pledge Percentage”
shall mean 100% but 65% in the case of a pledge by the Company or any Domestic
Subsidiary of its Equity Interests in any First-Tier Foreign
Subsidiary.
“Authorized Officer” shall mean
(i) in the case of the Company, its chief executive officer, its chief financial
officer, its president, any officer of the Company designated as an “Authorized
Officer” of the Company in the Information Schedule attached hereto or any
officer of the Company designated as an “Authorized Officer” of the Company for
the purpose of this Agreement in an Officer's Certificate executed by the
Company's chief executive officer, chief financial officer, president or
secretary and delivered to Prudential, and (ii) in the case of Prudential, any
officer of Prudential designated as its “Authorized Officer” in the Information
Schedule or any officer of Prudential designated as its “Authorized Officer” for
the purpose of this Agreement in a certificate executed by one of its Authorized
Officers and delivered to the Company. Any action taken under this
Agreement on behalf of the Company by any individual who on or after the date of
this Agreement shall have been an Authorized Officer of the Company and whom
Prudential in good faith believes to be an Authorized Officer of the Company at
the time of such action shall be binding on the Company even though such
individual shall have ceased to be an Authorized Officer of the Company, and any
action taken under this Agreement on behalf of Prudential by any individual who
on or after the date of this Agreement shall have been an Authorized Officer of
Prudential and whom the Company in good faith believes to be an Authorized
Officer of Prudential at the time of such action shall be binding on Prudential
even though such individual shall have ceased to be an Authorized Officer of
Prudential.
“Available Facility Amount”
shall have the meaning specified in paragraph 2B(1).
“Board” shall mean the Board of
Governors of the Federal Reserve System of the United States of
America.
“Burdensome Restrictions” shall
mean any consensual encumbrance or restriction of the type described in clause
(a) or (b) of paragraph 6I, excluding such encumbrances and restrictions
expressly permitted under paragraph 6I.
48
“Business Day” shall mean any
day other than (i) a Saturday or a Sunday, (ii) a day on which commercial banks
in New York City are required or authorized to be closed and (iii) for purposes
of paragraph 2B(3) hereof only, a day on which Prudential is not open for
business.
“Cancellation Date” shall have
the meaning specified in paragraph 2B(8)(ii).
“Cancellation Fee” shall have
the meaning specified in paragraph 2B(8)(ii).
“Capital Expenditures” shall
mean, without duplication, any expenditure or commitment to expend money for any
purchase or other acquisition of any asset which would be classified as a fixed
or capital asset on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with GAAP.
“Capital Lease Obligations” of
any Person shall mean the obligations of such Person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a balance sheet
of such Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
“Change in Control” shall mean
(a) the acquisition of ownership, directly or indirectly, beneficially or of
record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the SEC thereunder as in effect on the date
hereof), of Equity Interests representing more than 30% of the aggregate
ordinary voting power represented by the issued and outstanding Equity Interests
of the Company; (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Company by Persons who were neither (i)
nominated by the board of directors of the Company nor (ii) appointed by
directors so nominated; or (c) the acquisition of direct or indirect Control of
the Company by any Person or group.
“Closing Day” shall mean, with
respect to the Series A Notes and Series B Notes, the Initial Closing Day and,
with respect to any Accepted Note, the Business Day specified for the closing of
the purchase and sale of such Accepted Note in the Request for Purchase of such
Accepted Note, provided that (i)
if the Company and the Purchaser which is obligated to purchase such Accepted
Note agree on an earlier Business Day for such closing, the “Closing Day” for such Accepted
Note shall be such earlier Business Day, and (ii) if the closing of the purchase
and sale of such Accepted Note is rescheduled pursuant to paragraph 2B(7), the
Closing Day for such Accepted Note, for all purposes of this Agreement except
references to “original Closing Day” in paragraph 2B(8)(i), shall mean the
Rescheduled Closing Day with respect to such Accepted Note.
“Code” shall mean the Internal
Revenue Code of 1986, as amended from time to time.
49
“Collateral” shall mean any and
all property of any Credit Party, now existing or hereafter acquired, that may
at any time be or become subject to a security interest or Lien in favor of
Collateral Agent pursuant to the Collateral Documents, on behalf of itself and
the Secured Parties, to secure the Secured Obligations.
“Collateral Agent” shall mean
JPMorgan Chase Bank, N.A. in its capacity as Collateral Agent for the Secured
Parties and any successor Collateral Agent appointed pursuant to the terms of
the Intercreditor Agreement.
“Collateral Documents” shall
mean, collectively, the Security Agreement, the Mortgages and all other
agreements, instruments and documents executed in connection with this Agreement
that are intended to create, perfect or evidence Liens to secure the Secured
Obligations, including, without limitation, all other security agreements,
pledge agreements, mortgages, deeds of trust, loan agreements, notes,
guarantees, subordination agreements, pledges, powers of attorney, consents,
assignments, contracts, fee letters, notices, leases, financing statements and
all other written matter whether heretofore, now, or hereafter executed by the
Company or any of its Subsidiaries and delivered to the Collateral Agent, on
behalf of itself and the Secured Parties, to secure the Secured
Obligations.
“Company” shall mean
Measurement Specialties, Inc., a New Jersey corporation.
“Confirmation of Acceptance”
shall have the meaning specified in paragraph 2B(5).
50
“Consolidated EBITDA” shall
mean, with respect to any Person for any fiscal period, without duplication, an
amount equal to (a) Consolidated Net Income of such Person for such period,
determined in accordance with GAAP, minus (b) the sum of (i) income tax
credits, (ii) interest income, (iii) gain from extraordinary items for such
period, (iv) any aggregate net gain (but not any aggregate net loss) during such
period arising from the sale, exchange or other disposition of capital assets by
such Person (including any fixed assets, whether tangible or intangible, all
inventory sold in conjunction with the disposition of fixed assets and all
securities), (v) any other non-cash gains that have been added in determining
Consolidated Net Income and (vi) gains due to fluctuations in currency exchange
rates, in each case to the extent included in the calculation of Consolidated
Net Income of such Person for such period in accordance with GAAP, but without
duplication, plus (c) the sum of
(i) any provision for income taxes, (ii) interest expense, (iii) loss from
extraordinary items including from export control matters for such period so
long as the aggregate amount added back during the term of this Agreement for
the export control matters does not exceed $10,000,000, (iv) any aggregate net
loss during such period arising from the sale, exchange or other disposition of
capital assets by such Person (including any fixed assets, whether tangible or
intangible, all inventory sold in conjunction with the disposition of fixed
assets and all securities) (v) the amount of non-cash charges (including
depreciation and amortization) and non-cash compensation for Equity Interests
for such period, (vi) amortized debt discount for such period, (vii) losses due
to fluctuations in currency exchange rates, and (viii) the amount of any
deduction to Consolidated Net Income as the result of any grant to any members
of the management of such Person of any Equity Interests, in each case to the
extent included in the calculation of Consolidated Net Income of such Person for
such period in accordance with GAAP, but without duplication. For purposes of
this definition, in determining Consolidated Net Income of a Person there shall
be included the income (or deficit) of any other Person (including any Person or
division or line of business of a Person acquired pursuant to a Permitted
Acquisition) accrued prior to the date it became a subsidiary of, or was merged
or consolidated into, or acquired by purchase of assets by, such Person or any
of such Person’s subsidiaries, as determined to the reasonable satisfaction of
the Required Holders. For purposes of this definition, Consolidated
EBITDA for any period shall, for such period, be reduced by an amount equal to
the Consolidated EBITDA (if positive) attributable to the property and assets
that are the subject of a disposition during such period, or increased by an
amount equal to the Consolidated EBITDA (if negative) attributable
thereto. For purposes of this definition, the following items shall
be excluded in determining Consolidated Net Income of a Person: (1) the income
(or deficit) of any other Person (other than a subsidiary) in which such Person
has an ownership interest, except to the extent any such income has actually
been received by such Person in the form of cash dividends or distributions; (2)
the undistributed earnings of any subsidiary of such Person to the extent that
the declaration or payment of dividends or similar distributions by such
subsidiary is not at the time permitted by the terms of any contractual
obligation or requirement of law applicable to such subsidiary; (3) any write-up
of any asset; (4) any net gain from the collection of the proceeds of life
insurance policies; and (5) any net gain arising from the acquisition of any
securities, or the extinguishment, under GAAP, of any Indebtedness, of such
Person.
“Consolidated Interest Expense”
shall mean, with reference to any period, the interest expense (including
without limitation interest expense under Capital Lease Obligations that is
treated as interest in accordance with GAAP) of the Company and its Subsidiaries
calculated on a consolidated basis for such period with respect to all
outstanding Indebtedness of the Company and its Subsidiaries allocable to such
period in accordance with GAAP (including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers acceptance financing and net costs under interest rate Swap Agreements
to the extent such net costs are allocable to such period in accordance with
GAAP). In the event that the Company or any Subsidiary shall have
completed an acquisition or a disposition since the beginning of the relevant
period, Consolidated Interest Expense shall be determined for such period on a
Pro Forma Basis as if such acquisition or disposition, and any related
incurrence or repayment of Indebtedness, had occurred at the beginning of such
period.
“Consolidated Net Income” shall
mean, with reference to any period, the net income (or loss) of the Company and
its Subsidiaries from continuing operations calculated in accordance with GAAP
on a consolidated basis (without duplication) for such period; provided that there shall be excluded
any income (or loss) of any Person other than the Company or a Subsidiary, but
any such income so excluded may be included in such period or any later period
to the extent of any cash dividends or distributions actually paid in the
relevant period to the Company or any wholly-owned Subsidiary of the
Company.
51
“Consolidated Total Assets”
shall mean, at any date of determination, the net book value of all assets of
the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP, reflected in the financial statements of the Company and
its Subsidiaries most recently delivered to the holders of the Notes pursuant to
paragraph 5A (or prior to delivery of the initial financial statements required
under 5A(ii), the December 31, 2009 financial statements of the Company and its
Subsidiaries).
“Consolidated Total Funded
Indebtedness” shall mean, with respect to any Person, without duplication
(a) all indebtedness of such Person for borrowed money, but excluding
obligations to trade creditors incurred in the ordinary course of business that
are unsecured and not overdue by more than six (6) months unless being contested
in good faith, (b) all reimbursement and other obligations with respect to
letters of credit, bankers’ acceptances and surety bonds, whether or not
matured, (c) all obligations evidenced by notes, bonds, debentures or similar
instruments, (d) all Capital Lease Obligations and the present value (discounted
at the Alternate Base Rate (as defined in the Credit Agreement as in effect on
the Initial Closing Day) as in effect on the Initial Closing Day) of future
rental payments under all synthetic leases, (e) all Indebtedness referred to
above secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in property
or other assets (including accounts and contract rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of such
Indebtedness, and (f) the Obligations. Consolidated Total Funded
Indebtedness shall not include (y) any Earnouts or (z) any other contingent
payments with respect to any acquisitions existing as of the date of this
Agreement or arising from any Permitted Acquisitions from and after the date of
this Agreement.
“Control” shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.
“Credit Parties” shall mean,
collectively, the Company and the Subsidiary Guarantors.
“Credit Agreement” shall mean
that certain Credit Agreement, dated the date hereof, by and among the Company,
the lenders party thereto and JPMorgan Chase Bank, N.A. as Administrative and
Collateral Agent, as may be amended, modified, renewed, refinanced, replaced,
restated or supplemented from time to time.
“Credit Document Obligations”
shall mean the Indebtedness and other obligations, if any, of the Company and
its Subsidiaries under or in connection with the Credit Documents, secured on a
pari passu basis with the Obligations pursuant to the Intercreditor
Agreement.
52
“Credit Documents” shall mean
the Credit Agreement, any promissory notes issued pursuant to the Credit
Agreement, any collateral documents, guarantees and all other agreements,
instruments, documents and certificates executed and delivered by any of the
Credit Parties to the administrative agent or any lenders under the Credit
Agreement pursuant to the terms of the Credit Agreement, each as may be amended,
modified, renewed, refinanced, replaced, restated or supplemented from time to
time.
“Default” shall mean any event
or condition which constitutes an Event of Default or which upon notice, lapse
of time or both would, unless cured or waived, become an Event of
Default.
“Default Rate” shall mean, at
any time upon the occurrence and during the continuation of an Event of Default
and until such Event of Default has been cured or waived in writing, a rate of
interest per annum from time to time equal to the lesser of (i) the maximum rate
permitted by applicable law and (ii) 2.0% over the rate of interest in effect
immediately prior to such Event of Default.
“Delayed Delivery Fee” shall
have the meaning specified in paragraph 2B(8)(i).
“Dollars” or “$” refers to lawful money of
the United States of America.
“Domestic Subsidiary” shall
mean a Subsidiary organized under the laws of a jurisdiction located in the
United States of America.
“Dormant Subsidiary” means each
of Elekon Industries USA, Inc. and Entran Devices LLC.
“Earnouts” shall mean any
“earnouts” or similar obligations accrued in connection with any acquisition
determined in accordance with GAAP.
“Environmental Laws” shall mean
all laws, rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to health and safety
matters.
“Environmental Liability” shall
mean any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities),
of the Company or any Subsidiary directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
53
“Equity Interests” shall mean
shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any of the
foregoing.
“ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA Affiliate” shall mean
any trade or business (whether or not incorporated) that, together with the
Company, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
“ERISA Event” shall mean (a)
any “reportable event”, as defined in Section 4043 of ERISA or the regulations
issued thereunder with respect to a Plan (other than an event for which the
30-day notice period is waived); (b) the existence with respect to any Plan of
an “accumulated funding deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (d) the incurrence by the
Company or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan; (e) the receipt by the Company or
any ERISA Affiliate from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Company or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
of the Company or any of its ERISA Affiliates from any Plan or Multiemployer
Plan; or (g) the receipt by the Company or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of
any notice, concerning the imposition upon the Company or any of its ERISA
Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
“Event of Default” shall mean
any of the events specified in paragraph 7A, provided that there has been
satisfied any requirement in connection with such event for the giving of
notice, or the lapse of time, or the happening of any further condition, event
or act.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.
“Excluded Taxes” shall have the
meaning specified in paragraph 3D.
54
“Existing Credit Agreement”
shall mean the Amended and Restated Credit Agreement, dated as of April 3, 2006,
by and among the Company, the lenders from time to time party thereto and
General Electric Capital Corporation, as administrative agent, as amended,
restated, supplemented or otherwise modified prior to the date
hereof.
“Facility” shall have the
meaning specified in paragraph 2B(1).
“Financial Officer” shall mean
the chief financial officer, principal accounting officer, treasurer or
controller of the Company.
“First Tier Foreign Subsidiary”
shall mean each Foreign Subsidiary with respect to which any one or more of the
Company or its Domestic Subsidiaries (other than a Domestic Subsidiary which is
owned by a Foreign Subsidiary) directly owns or Controls more than 50% of such
Foreign Subsidiary’s issued and outstanding Equity Interests.
“Fixed Charge Coverage Ratio”
has the meaning assigned to such term in paragraph 6L(ii).
“Foreign Subsidiary” shall mean
any Subsidiary which is not a Domestic Subsidiary.
“GAAP” shall mean generally
accepted accounting principles in the United States of America.
“Governmental Authority” shall
mean the government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Guarantee” of or by any Person
(the “guarantor”) shall
mean any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation or
to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
55
“Hazardous Materials” shall
mean all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.
“Hedge Treasury Note(s)” shall
mean, with respect to any Accepted Note, the United States Treasury Note or
Notes whose average life (as determined by Prudential) most closely matches the
average life of such Accepted Note.
“Holders of Credit Document
Obligations” shall mean the holders of the Credit Document Obligations
from time to time that have agreed to be bound by the terms of the Intercreditor
Agreement and shall include their respective successors, transferees and
assigns.
“Holders of Obligations” shall
mean the holders of the Obligations from time to time, including, without
limitation (i) each holder of any Note in respect of its Notes and all other
present and future obligations and liabilities of the Company and each
Subsidiary of every type and description arising under this Agreement or any
other Note Document in favor of such holder, (ii) each indemnified party under
paragraph 11B in respect of the obligations and liabilities of the Company to
such Person arising hereunder and under the other Note Documents, and (iii)
their respective successors, transferees and assigns.
“Holders of Permitted Private
Placement Obligations” shall mean the holders of the Permitted Private
Placement Obligations from time to time that have agreed to be bound by the
terms of the Intercreditor Agreement and shall include their respective
successors, transferees and assigns.
“Indebtedness” of any Person
shall mean, without duplication, (a) all obligations of such Person for
borrowed money or with respect to deposits or advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest charges
are customarily paid, (d) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred
purchase price of property or services (excluding current accounts payable
incurred in the ordinary course of business, Earnouts and any other contingent
payments with respect to any acquisitions existing as of the date of this
Agreement or arising from any Permitted Acquisitions from and after the date of
this Agreement), (f) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters
of guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances and (k) all obligations of such Person under
Sale and Leaseback Transactions. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
56
“Information Memorandum” shall
mean the Confidential Information Memorandum dated April 2010 relating to the
Company and the Transactions.
“INHAM Exemption” shall have
the meaning set forth in paragraph 9B.
“Institutional Investor” shall
mean any insurance company, commercial, investment or merchant bank, finance
company, mutual fund, registered money or asset manager, savings and loan
association, credit union, registered investment advisor, pension fund,
investment company, licensed broker or dealer, “qualified institutional buyer”
(as such term is defined under Rule 144A promulgated under the Securities Act,
or any successor law, rule or regulation) or “accredited investor” (as such term
is defined under Regulation D promulgated under the Securities Act, or any
successor law, rule or regulation).
“Intercreditor Agreement” shall
have the meaning given thereto in paragraph 3A(xi), as such agreement may be
amended, modified, replaced, restated or supplemented from time to
time.
“Initial Closing Day” shall
have the meaning specified in paragraph 2A.
“Issuance Period” shall have
the meaning specified in paragraph 2B(2).
“Leverage Ratio” has the
meaning assigned to such term in paragraph 6L(i).
“Lien” shall mean, with respect
to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation,
encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement (or any financing lease having substantially
the same economic effect as any of the foregoing) relating to such asset and (c)
in the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.
“Material Adverse Effect” shall
mean a material adverse effect on (a) the business, assets, operations or
financial condition of the Company and the Subsidiaries taken as a whole or (b)
the validity or enforceability of this Agreement or any and all other Note
Documents or the rights or remedies of any holder of any Note
thereunder.
57
“Material Indebtedness” shall
mean Indebtedness (other than the Notes), or obligations in respect of one or
more Swap Agreements, of any one or more of the Company and its Subsidiaries in
an aggregate principal amount exceeding $4,000,000 (or its equivalent in another
currency). For purposes of determining Material Indebtedness, the
“principal amount” of the obligations of the Company or any Subsidiary in
respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Company or such Subsidiary
would be required to pay if such Swap Agreement were terminated at such
time.
“Moody’s” shall mean Moody’s
Investors Service, Inc.
“Mortgage” shall mean each
mortgage, deed of trust or other agreement which conveys or evidences a Lien in
favor of the Collateral Agent, for the benefit of the Collateral Agent and the
Secured Parties, on real property of a Credit Party, including any amendment,
restatement, modification or supplement thereto.
“Mortgage Instruments” shall
mean such title reports, ALTA title insurance policies (with endorsements),
evidence of zoning compliance, property insurance, flood certifications and
flood insurance, opinions of counsel, ALTA surveys, appraisals, flood
certifications (and, if applicable FEMA form acknowledgements of insurance),
environmental assessments and reports, mortgage tax affidavits and declarations
and other similar information and related certifications as are requested by,
and in form and substance reasonably acceptable to, the Required Holders from
time to time.
“Multiemployer Plan” shall mean
a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“NAIC Annual Statement” shall
have the meaning set forth in paragraph 9B.
“Note Documents” shall mean
this Agreement, the Notes, the Subsidiary Guaranty and any other guaranty
agreement executed pursuant to this Agreement, the Intercreditor Agreement, the
Collateral Documents, and all other agreements, instruments, documents and
certificates executed and delivered to, or in favor of, the Collateral Agent or
any holder of any Note in connection with this Agreement, including all other
pledges, powers of attorney, consents, assignments, contracts, notices, and all
other written matter whether heretofore, now or hereafter executed by or on
behalf of any Credit Party and delivered to any the Collateral Agent or holder
of any note in connection with this Agreement or the transactions contemplated
hereby. Any reference in this Agreement or any other Note Document to
a Note Document shall include all appendices, exhibits or schedules thereto, and
all amendments, restatements, supplements or other modifications thereto, and
shall refer to this Agreement or such Note Document as the same may be in effect
at any and all times such reference becomes operative.
“Note(s)” shall have the
meaning specified in paragraph 1.
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“Obligations” shall mean (i)
all unpaid principal of and accrued and unpaid interest on the Notes, all
Yield-Maintenance Amounts due and payable hereunder, all accrued and unpaid fees
and all expenses, reimbursements, indemnities and other obligations, liabilities
and indebtedness (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) of any of the Credit Parties to
any holder of any Note or any indemnified party under the Note Documents,
individually or collectively, existing on the Initial Closing Day or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Agreement or any of the other Note Documents or in respect of any of the Notes
or other obligations incurred; provided that, for the
avoidance of doubt, the Obligations shall exclude the Credit Document
Obligations and the Permitted Private Placement Obligations.
“Officer's Certificate” shall
mean a certificate signed in the name of the Company by an Authorized Officer of
the Company.
“Operating Lease Expense” shall
mean, for any period, the aggregate amount of fixed and contingent rentals
payable by the Company and its Subsidiaries with respect to lease transactions
under which the parties intend that the lease will be treated as an “operating
lease” by the lessee pursuant to Statement of Financial Accounting Standards No.
13, as amended.
“PBGC” shall mean the Pension
Benefit Guaranty Corporation referred to and defined in ERISA and any successor
entity performing similar functions.
“Permitted Acquisition” shall
mean any acquisition (whether by purchase, merger, consolidation or otherwise)
or series of related acquisitions by the Company or any Subsidiary of (i) all or
substantially all the assets of or (ii) all or substantially all the Equity
Interests in, a Person or division or line of business of a Person, if, (1) the
Company shall have given each holder of any Note at least twenty (20) calendar
days’ prior written notice of such proposed Permitted Acquisition, and (2) at
the time of and immediately after giving effect thereto, (a) no Event of Default
has occurred and is continuing or would arise after giving effect thereto, (b)
such Person or division or line of business is engaged in the same or a similar
line of business as the Company and the Subsidiaries or a business reasonably
related thereto, (c) all actions required to be taken with respect to such
acquired or newly formed Subsidiary under paragraph 5I shall have been taken,
(d) the Company and the Subsidiaries are in compliance, on a pro forma basis
reasonably acceptable to the Required Holders after giving effect to such
acquisition (but only giving effect to synergies or cost savings if permitted in
accordance with Regulation S-X), with the covenants contained in paragraph 6L
recomputed as of the last day of the most recently ended fiscal quarter of the
Company for which financial statements are available, as if such acquisition
(and any related incurrence or repayment of Indebtedness, with any new
Indebtedness being deemed to be amortized over the applicable testing period in
accordance with its terms) had occurred on the first day of each relevant period
for testing such compliance and, if the aggregate consideration paid in respect
of such acquisition exceeds $10,000,000, the Company shall have delivered to
each holder of any Note a certificate of a Financial Officer of the Company to
such effect, together with all relevant financial information, statements and
projections reasonably requested by any holder of any Note, (e) in the case of
an acquisition or merger involving the Company or a Subsidiary, the Company or
such Subsidiary is the surviving entity of such merger and/or acquisition, (f)
the representations and warranties of each Credit Party set forth in the Note
Documents are true and correct in all material respects, and (g) the board of
directors (or equivalent thereof) of the Person whose assets or stock is being
acquired has approved such merger and/or acquisition.
59
“Permitted Encumbrances” shall
mean:
(i) Liens
imposed by law for taxes that are not yet due or are being contested in
compliance with paragraph 5D;
(ii) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than thirty (30) days or are being
contested in compliance with paragraph 5D;
(iii) Liens
incurred and pledges and deposits made in the ordinary course of business in
compliance with workers’ compensation, unemployment insurance and other social
security laws or regulations;
(iv) Liens
incurred and deposits to secure the performance of bids, tenders, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business;
(v) judgment
Liens in respect of judgments that do not constitute an Event of Default under
clause (xi) of paragraph 7A; and
(vi) easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of the
Company or any Subsidiary;
(vii) any
interest or title of a lessor or sublessor under any lease of real
estate;
60
(viii) leases,
licenses, subleases or sublicenses granted to others not interfering in any
material respect with the business of the Company or any of its Subsidiaries;
and
(ix) purported
Liens evidenced by the filing of precautionary Uniform Commercial Code financing
statements or similar filings relating to operating leases of personal property
entered into by the Company or any of its Subsidiaries in the ordinary course of
business;
provided that the
term “Permitted Encumbrances” shall not include any Lien securing Indebtedness
or any Liens arising due to a failure to fulfill an obligation arising under
ERISA.
“Permitted Intercompany
Transaction” shall mean transactions by and among the Company and its
Subsidiaries including, but not limited to, payments and collections of
debit/credit notes, transfers of assets, royalties, license fees, technology
transfer fees, management fees, and payments related to tax compliance and other
such transactions, in the ordinary course of business for trade, intercompany
loans, advances for Permitted Acquisitions and related deferred acquisition
payments, acquisition notes, Earnouts and acquisition escrow payments, and
transactions that are required to repatriate cash including, but not limited to,
dividend distributions, capital contributions and the sale of assets by the
Company or any Domestic Subsidiary to any Foreign Subsidiary for consideration
equal to the fair market value of such asset.
“Permitted Investments” shall
mean:
(i) direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full faith and credit
of the United States of America), in each case maturing within one year from the
date of acquisition thereof;
(ii) investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody’s;
(iii) investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United
States of America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(iv) fully
collateralized repurchase agreements with a term of not more than thirty (30)
days for securities described in clause (i) above and entered into with a
financial institution satisfying the criteria described in clause (iii) above;
and
61
(v) money
market funds that (a) comply with the criteria set forth in SEC Rule 2a-7 under
the Investment Company Act of 1940, (b) are rated AAA by S&P and Aaa by
Moody’s and (c) have portfolio assets of at least $5,000,000,000;
and
(vi) in
the case of investments by a Foreign Subsidiary made in a country other than the
United States of America, investments denominated in any currencies that are
substantially similar to the investments described in clauses (i) through (v) of
this definition in the country where such Foreign Subsidiary is located or in
which such investment is made.
“Permitted Liens” shall mean
Liens permitted pursuant to paragraph 6B.
“Permitted Private Placement
Documents” shall mean any note purchase agreements, loan agreements,
promissory notes, collateral documents, guarantees and all other agreements,
instruments, documents and certificates executed or delivered by any of the
Credit Parties with respect to any Permitted Private Placement Secured
Financings, but excluding all Note Documents.
“Permitted Private Placement
Obligations” shall mean the Indebtedness and other obligations, if any,
of the Company and its Subsidiaries under or in connection with the Permitted
Private Placement Documents, secured on a pari passu basis with the Obligations
pursuant to the Intercreditor Agreement.
“Permitted Private Placement Secured
Financings” means any issuances or incurrences of Indebtedness of the
Company from time to time pursuant to privately placed note offerings to
institutional investors or term loans from institutional lenders (as amended,
modified, extended, refinanced, renewed, replaced and restated from time to time
but subject to paragraph 5J), in each case secured on a pari passu basis with
the Obligations and the Credit Document Obligations pursuant to the
Intercreditor Agreement, in an aggregate outstanding cumulative principal
amount, together with the cumulative principal amount of the Notes, not to
exceed $50,000,000; provided, however, with respect
to any such Indebtedness issued or incurred after the date hereof, at the time
of issuance or incurrence of such Indebtedness and after giving effect
thereto: (a) the Company has delivered to the holders of the Notes
and the purchasers and lenders under such note offering or term loans, a
certificate executed by a Financial Officer certifying that (i) no Default or
Event of Default has occurred and is continuing and (ii) the Company and its
Subsidiaries are in compliance with the covenants contained in Section 6L, (b)
the financial covenants in the documentation with respect to such Permitted
Private Placement Secured Financing shall, at the time of issuance thereof, be
no more restrictive than the financial covenants set forth in this Agreement,
and (c) such institutional investors or lenders (or the agents on their behalf),
as the case may be, shall have entered into or become a party to the
Intercreditor Agreement (and such investors, lenders and agents shall be
permitted to become a party to the Intercreditor Agreement at the request of the
Company).
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“Person” shall mean any natural
person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other
entity.
“Plan” shall mean any employee
pension benefit plan (other than a Multiemployer Plan) subject to the provisions
of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Company or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.
“Pledge Subsidiary” shall mean
(i) each Domestic Subsidiary (other than a Domestic Subsidiary that is a direct
or indirect Subsidiary of a Foreign Subsidiary) and (ii) each First Tier Foreign
Subsidiary.
“Pro Forma Basis” shall mean,
with respect to any event, that the Company is in compliance on a pro forma basis with the
applicable covenant, calculation or requirement herein recomputed as if the
event with respect to which compliance on a Pro Forma Basis is being tested had
occurred on the first day of the four fiscal quarter period most recently ended
on or prior to such date for which financial statements have been delivered
pursuant to paragraph 5A, or, if no financial statements have yet been delivered
pursuant to paragraph 5A, then paragraph 3A(xiv).
“Prudential” shall mean
Prudential Investment Management, Inc.
“Prudential Affiliate” shall
mean (a) any corporation or other entity controlling, controlled by, or under
common control with, Prudential, or (b) any managed account or investment fund
which is managed by Prudential or a Prudential Affiliate described in
clause (a) of this definition. For purposes of this definition, the
terms “control”, “controlling” and “controlled” shall mean the ownership,
directly or through subsidiaries, of a majority of a corporation’s or other
entity’s voting stock or equivalent voting securities or interests.
“Purchasers” shall mean the
Series A Purchasers and their respective successors and assigns with respect to
the Series A Notes, the Series B Purchasers and their respective successors and
assigns with respect to the Series B Notes and, with respect to any Accepted
Notes, Prudential and/or the Prudential Affiliate(s), which are purchasing such
Accepted Notes, and their respective successors and assigns.
“QPAM Exemption” shall have the
meaning set forth in paragraph 9B.
“qualified institutional buyer”
shall have the meaning set forth in paragraph 5B.
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“Regulation S-X” shall mean
Regulation S-X under the Securities Act of 1933, as amended.
“Request for Purchase” shall
have the meaning specified in paragraph 2B(3).
“Required Holder(s)” shall
mean the holder or holders of more than fifty percent (50%) of the aggregate
principal amount of the Notes or of a Series of Notes, as the context may
require, from time to time outstanding.
“Rescheduled Closing Day” shall
have the meaning specified in paragraph 2B(7).
“Responsible Officer” shall
mean the chief executive officer, chief operating officer, chief financial
officer or chief accounting officer of the Company or any other officer of the
Company involved principally in its financial administration or its
controllership function.
“Restricted Payment” shall mean
any dividend or other distribution (whether in cash, securities or other
property) with respect to any Equity Interests in the Company or any Subsidiary,
or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such Equity
Interests in the Company or any Subsidiary or any option, warrant or other right
to acquire any such Equity Interests in the Company or any
Subsidiary.
“S&P” shall mean Standard
& Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC
business.
“Sale and Leaseback
Transaction” shall mean any sale or other transfer of any property or
asset by any Person with the intent to lease such property or asset as
lessee.
“SEC” shall mean the United
States Securities and Exchange Commission.
“Secured Obligations” shall
mean the Obligations, and to the extent that the holders thereof are bound by
the Intercreditor Agreement, the Credit Document Obligations and the Permitted
Private Placement Obligations.
“Secured Parties” shall mean
the Holders of Obligations, and to the extent such Persons are bound by the
Intercreditor Agreement, the Holders of Credit Document Obligations and the
Holders of Permitted Private Placement Obligations.
“Securities Act” shall mean the
Securities Act of 1933, as amended.
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“Security Agreement” shall mean
that certain Pledge and Security Agreement (including any and all supplements
thereto), dated as of the date hereof, between the Credit Parties and the
Collateral Agent, for the benefit of the Secured Parties, and any other pledge
or security agreement entered into, after the date of this Agreement by any
other Credit Party (as required by this Agreement or any other Note Document),
or any other Person, as the same may be amended, restated or otherwise modified
from time to time.
“Series” shall have the meaning
specified in paragraph 1C.
“Series A Note(s)” shall have
the meaning specified in paragraph 1A.
“Series A Purchasers” shall
mean The Prudential Insurance Company of America and Forethought Life Insurance
Company.
“Series B Note(s)” shall have
the meaning specified in paragraph 1B.
“Series B Purchasers” shall
mean Universal Prudential Arizona Reinsurance Company and MTL Insurance
Company.
“Shelf Note(s)” shall have the
meaning specified in paragraph 1C.
“Solvent” shall mean, in
reference to the Company, (i) the fair value of the assets of the Company, at a
fair valuation, will exceed its debts and liabilities, subordinated, contingent
or otherwise; (ii) the present fair saleable value of the property of the
Company will be greater than the amount that will be required to pay the
probable liability of its debts and other liabilities, subordinated, contingent
or otherwise, as such debts and other liabilities become absolute and matured;
(iii) the Company will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (iv) the Company will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted after the Initial Closing
Day.
“Subordinated Indebtedness”
shall mean any Indebtedness of the Company or any Subsidiary Guarantor the
payment of which is subordinated to payment of the obligations under the Note
Documents.
“Subordinated Indebtedness
Documents” shall mean any document, agreement or instrument evidencing
any Subordinated Indebtedness or entered into in connection with any
Subordinated Indebtedness.
“subsidiary” shall mean, with
respect to any Person (the “parent”) at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent’s consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, Controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
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“Subsidiary” shall mean any
subsidiary of the Company.
“Subsidiary Guarantor” shall
mean each Domestic Subsidiary (which shall not include any Domestic Subsidiary
that is directly or indirectly owned by a Foreign Subsidiary) that is party to
the Subsidiary Guaranty. The Subsidiary Guarantors on the Initial
Closing Day are identified as such in Schedule 8A
hereto.
“Subsidiary Guaranty” shall
mean that certain Guaranty dated as of the Initial Closing Day (including any
and all supplements thereto) and executed by each Subsidiary Guarantor, as
amended, restated, supplemented or otherwise modified from time to
time.
“Swap Agreement” shall mean any
agreement with respect to any swap, forward, future or derivative transaction or
option or similar agreement involving, or settled by reference to, one or more
rates, currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic, financial or
pricing risk or value or any similar transaction or any combination of these
transactions; provided that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Company or the Subsidiaries shall be a Swap Agreement.
“Swap Obligations” means any
and all obligations of the Company or any Subsidiary Guarantor, whether absolute
or contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (a) any and all Swap Agreements
permitted with a lender under the Credit Agreement or an Affiliate of
such a lender (provided that, in the case of any such Affiliate, at or prior to
the time that any transaction relating to a Swap Obligation is executed, such
Affiliate (if any) party thereto shall have delivered written notice to the
Collateral Agent that such a transaction has been entered into and that it
constitutes a Secured Obligation entitled to the benefits of the Collateral
Documents but subject to the terms and conditions in the Intercreditor Agreement
and that such Affiliate shall be bound by the terms of the Intercreditor
Agreement as if it were a party thereto), and (b) any and all cancellations, buy
backs, reversals, terminations or assignments of any such Swap Agreement
transaction.
“Taxes” shall mean any and all
present or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
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“Transactions” shall mean the
execution, delivery and performance by the Credit Parties of this Agreement and
the other Note Documents, the issuance of the Notes (including any Shelf Notes)
and the use of the proceeds thereof.
“Transferee” shall mean any
direct or indirect transferee of all or any part of any Note purchased by any
Purchaser under this Agreement.
“UCC” shall mean the Uniform
Commercial Code as in effect from time to time in the State of New York or any
other state the laws of which are required to be applied in connection with the
issue of perfection of security interests.
“USA Patriot Act” shall mean
United States Public Law 107-56, Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act)
Act of 2001, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
“Withdrawal Liability” shall
mean liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
10C. Terms
Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. The word “law” shall be
construed as referring to all statutes, rules, regulations, codes and other laws
(including official rulings and interpretations thereunder having the force of
law or with which affected Persons customarily comply), and all judgments,
orders and decrees, of all Governmental Authorities. Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended, restated,
supplemented or otherwise modified (subject to any restrictions on such
amendments, restatements, supplements or modifications set forth herein), (b)
any definition of or reference to any statute, rule or regulation shall be
construed as referring thereto as from time to time amended, supplemented or
otherwise modified (including by succession of comparable successor laws), (c)
any reference herein to any Person shall be construed to include such Person’s
successors and assigns (subject to any restrictions on assignment set forth
herein) and, in the case of any Governmental Authority, any other Governmental
Authority that shall have succeeded to any or all functions thereof, (d) the
words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (e) all references herein to paragraphs Articles, Sections,
Exhibits and Schedules shall be construed to refer to paragraphs, Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (f) the words
“asset” and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
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10D. Accounting
Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided
that, if the Company notifies the holders of the Notes that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Required Holders notify the Company that
the Required Holders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance
herewith. Notwithstanding any other provision contained herein, all
terms of an accounting or financial nature used herein shall be construed, and
all computations of amounts and ratios referred to herein shall be made, without
giving effect to any election under Accounting Standards Codification 825-10-25
(previously referred to as Statement of Financial Accounting Standards 159) (or
any other Accounting Standards Codification or Financial Accounting Standard
having a similar result or effect) to value any Indebtedness or other
liabilities of the Company or any Subsidiary at “fair value”, as defined
therein.
10E. Status of
Obligations. In the event that the Company or any other Credit
Party shall at any time issue or have outstanding any other Subordinated
Indebtedness, the Company shall take or cause such other Credit Party to take
all such actions as shall be necessary to cause the Secured Obligations to
constitute senior indebtedness (however denominated) in respect of such
Subordinated Indebtedness and to enable the holders of the Notes to have and
exercise any payment blockage or other remedies available or potentially
available to holders of senior indebtedness under the terms of such Subordinated
Indebtedness. Without limiting the foregoing, the Obligations are
hereby designated as “senior indebtedness” and as “designated senior
indebtedness” and words of similar import under and in respect of any indenture
or other agreement or instrument under which such other Subordinated
Indebtedness is outstanding and are further given all such other designations as
shall be required under the terms of any such Subordinated Indebtedness in order
that the holders of the Notes may have and exercise any payment blockage or
other remedies available or potentially available to holders of senior
indebtedness under the terms of such Subordinated Indebtedness.
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11. MISCELLANEOUS.
11A. Note Payments. So
long as any Purchaser shall hold any Note, the Company will make payments of
principal of, interest on, and any Yield-Maintenance Amount payable with respect
to, such Note, which comply with the terms of this Agreement, by wire transfer
of immediately available funds for credit (not later than 12:00 noon, New York
City time, on the date due) to (i) the account or accounts of such Purchaser
specified in the Purchaser Schedule attached hereto in the case of any Series A
Note and any Series B Note, (ii) the account or accounts of such Purchaser
specified in the Confirmation of Acceptance with respect to such Note in the
case of any Shelf Note or (iii) such other account or accounts in the United
States as such Purchaser may from time to time designate in writing,
notwithstanding any contrary provision herein or in any Note with respect to the
place of payment. The Company agrees to afford the benefits of this
paragraph 11A to any Transferee. No holder shall be required to
present or surrender any Note, except that upon written request of the Company
made concurrently with or reasonably promptly after payment or prepayment in
full of any Note, the applicable holder shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its
principal executive office.
11B. Expenses. Whether
or not the transactions contemplated hereby shall be consummated, the Company
shall pay, and save Prudential, each Purchaser and any Transferee harmless
against liability for the payment of, all out-of-pocket expenses arising in
connection with such transactions, including (i) (A) all stamp and
documentary taxes and similar charges, (B) costs of obtaining a private
placement number for the Notes and (C) reasonable fees and expenses of
brokers, agents, dealers, investment banks or other intermediaries or placement
agents, in each case as a result of the execution and delivery of this Agreement
or the issuance of the Notes; (ii) reasonable document production and
duplication charges and the fees and reasonable expenses of any special counsel
engaged by Prudential, such Purchaser or such Transferee in connection with
(A) this Agreement and the transactions contemplated hereby and
(B) any subsequent proposed waiver, amendment or modification of, or
proposed consent under, this Agreement, whether or not such the proposed action
shall be effected or granted; and (iii) the costs and expenses, including
attorneys' and financial advisory fees, incurred by such Purchaser or such
Transferee in enforcing (or determining whether or how to enforce) any rights
under this Agreement or the Notes or in responding to any subpoena or other
legal process or informal investigative demand issued in connection with this
Agreement or the transactions contemplated hereby or by reason of such
Purchaser's or such Transferee's having acquired any Note, including without
limitation costs and expenses incurred in any workout, restructuring or
renegotiation proceeding or bankruptcy case.
The
Company will promptly pay or reimburse each Purchaser or holder of a Note
(within fifteen days after written demand, in accordance with each such
Purchaser's or holder's written instructions) for all fees and costs paid or
payable by such Purchaser or holder to the Securities Evaluation Office (the
“SVO”) of the National
Association of Insurance Commissioners in connection with the initial filing of
this Agreement and all related documents and financial information, and all
subsequent annual and interim filings of documents and financial information
related to this Agreement, with the SVO or any successor organization acceding
to the authority thereof; provided however, that the Company shall not be
required to pay or reimburse the holders of the Notes pursuant to this sentence
for fees and costs in excess of $5,000 in the aggregate.
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The
Company shall indemnify Prudential, each holder of the Notes and each of their
Related Parties (each such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
penalties, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, the Notes, the
other Note Documents, or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations
hereunder or under the Notes, the other Note Documents, or the consummation of
the transactions contemplated hereby or thereby, (ii) any Notes or the use
of the proceeds thereof, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Company or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Company or any of its Subsidiaries, or (iv) any actual claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Company or any of the Company’s directors, shareholders or
creditors, and regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, penalties, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
The
obligations of the Company under this paragraph 11B shall survive the transfer
of any Note or portion thereof or interest therein by any Purchaser or
Transferee and the payment of any Note.
11C. Consent to
Amendments. This Agreement may be amended, and the Company may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, if the Company shall obtain the written consent to such
amendment, action or omission to act, of the Required Holder(s) of the Notes
except that, (i) with the written consent of the holders of all Notes of a
particular Series, and if an Event of Default shall have occurred and be
continuing, of the holders of all Notes of all Series, at the time outstanding
(and not without such written consents), the Notes of such Series may be amended
or the provisions thereof waived to change the maturity thereof, to change or
affect the principal thereof, or to change or affect the rate, method of
computation or time of payment of interest on or any Yield-Maintenance Amount
payable with respect to the Notes of such Series, or affect the time, amount or
allocation of any prepayment, (ii) without the written consent of the holder or
holders of all Notes at the time outstanding, no amendment to or waiver of the
provisions of this Agreement shall change or affect the provisions of this
paragraph 11C insofar as such provisions relate to proportions of the principal
amount of the Notes of any Series, or the rights of any individual holder of
Notes, required with respect to any declaration of Notes to be due and payable
or with respect to any consent, amendment, waiver or declaration,
(iii) with the written consent of Prudential (and not without the written
consent of Prudential) the provisions of paragraph 2B may be amended or waived
(except insofar as any such amendment or waiver would affect any rights or
obligations with respect to the purchase and sale of Notes which shall have
become Accepted Notes prior to such amendment or waiver), and (iv) with the
written consent of all of the Purchasers which shall have become obligated to
purchase Accepted Notes of any Series (and not without the written consent of
all such Purchasers), any of the provisions of paragraphs 2B and 3 may be
amended or waived insofar as such amendment or waiver would affect only rights
or obligations with respect to the purchase and sale of the Accepted Notes of
such Series or the terms and provisions of such Accepted Notes. Each
holder of any Note at the time or thereafter outstanding shall be bound by any
consent authorized by this paragraph 11C, whether or not such Note shall have
been marked to indicate such consent, but any Notes issued thereafter may bear a
notation referring to any such consent. No course of dealing between
the Company and the holder of any Note nor any delay in exercising any rights
hereunder or under any Note shall operate as a waiver of any rights of any
holder of such Note. As used herein and in the Notes, the term “this Agreement” and references
thereto shall mean this Agreement as it may from time to time be amended or
supplemented.
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11D. Form, Registration, Transfer and
Exchange of Notes; Lost Notes. The Notes are issuable as
registered notes without coupons in denominations of at least $100,000, except
as may be necessary to (i) reflect any principal amount not evenly divisible by
$100,000 or (ii) enable the registration of transfer by a holder of its entire
holding of Notes. The Company shall keep at its principal office a
register in which the Company shall provide for the registration of Notes and of
transfers of Notes. Upon surrender for registration of transfer of
any Note at the principal office of the Company, the Company shall, at its
expense and within five Business Days of receipt of such Notes, execute and
deliver one or more new Notes of like tenor and of a like aggregate principal
amount, registered in the name of such transferee or transferees. At
the option of the holder of any Note, such Note may be exchanged for other Notes
of like tenor and of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Note to be exchanged at the principal office of
the Company. Whenever any Notes are so surrendered for exchange, the
Company shall, at its expense, execute and deliver the Notes which the holder
making the exchange is entitled to receive. Each installment of
principal payable on each installment date upon each new Note issued upon any
such transfer or exchange shall be in the same proportion to the unpaid
principal amount of such new Note as the installment of principal payable on
such date on the Note surrendered for registration of transfer or exchange bore
to the unpaid principal amount of such Note. No reference need be
made in any such new Note to any installment or installments of principal
previously due and paid upon the Note surrendered for registration of transfer
or exchange. Every Note surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer duly executed, by the holder of such Note or such holder's attorney
duly authorized in writing. Any Note or Notes issued in exchange for
any Note or upon transfer thereof shall carry the rights to unpaid interest and
interest to accrue which were carried by the Note so exchanged or transferred,
so that neither gain nor loss of interest shall result from any such transfer or
exchange. Upon receipt of written notice from the holder of any Note
of the loss, theft, destruction or mutilation of such Note and, in the case of
any such loss, theft or destruction, upon receipt of such holder's unsecured
indemnity agreement, or in the case of any such mutilation upon surrender and
cancellation of such Note, the Company will make and deliver a new Note, of like
tenor, in lieu of the lost, stolen, destroyed or mutilated Note. The
Company shall give to any holder of a Note that is an Institutional Investor
promptly upon request therefor, a complete and correct copy of the names and
addresses of all registered holders of Notes.
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11E. Persons Deemed Owners;
Participations. Prior to due presentment for registration of
transfer, the Company may treat the Person in whose name any Note is registered
as the owner and holder of such Note for the purpose of receiving payment of
principal of and interest on, and any Yield-Maintenance Amount payable with
respect to, such Note and for all other purposes whatsoever, whether or not such
Note shall be overdue, and the Company shall not be affected by notice to the
contrary. Subject to the preceding sentence, the holder of any Note
may from time to time grant participations in all or any part of such Note to
any Person on such terms and conditions as may be determined by such holder in
its sole and absolute discretion.
11F. Survival of Representations and
Warranties; Entire Agreement. All representations and warranties
contained herein or made in writing by or on behalf of the Company in connection
herewith shall survive the execution and delivery of this Agreement and the
Notes, the transfer by any Purchaser of any Note or portion thereof or interest
therein and the payment of any Note, and may be relied upon by any Transferee,
regardless of any investigation made at any time by or on behalf of any
Purchaser or any Transferee. Subject to the preceding sentence, this
Agreement and the Notes embody the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and supersede all
prior agreements and understandings relating to such subject
matter.
11G. Successors and
Assigns. All covenants and other agreements in this Agreement
contained by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
(including, without limitation, any Transferee) whether so expressed or
not.
11H. Independence of Covenants and
Baskets. All covenants hereunder shall be given independent
effect so that if a particular action or condition is prohibited by any one of
such covenants, the fact that it would be permitted by an exception to, or
otherwise be in compliance within the limitations of, another covenant shall not
(i) avoid the occurrence of an Event of Default or Default if such action is
taken or such condition exists or (ii) in any way prejudice an attempt by the
holders to prohibit (through equitable action or otherwise) the taking of any
action by the Company or a Subsidiary which would result in an Event of Default
or Default. The exceptions (each, a “Permitted Basket”) to each
negative covenant expressly permitted in paragraph 6 hereof are cumulative and
shall be given independent effect within such negative covenant, and to the
extent any transaction is permitted in more than one Permitted Basket to any
such negative covenant, the Company may classify such transaction in one or more
of such Permitted Baskets to such negative covenant, at the Company’s
election.
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11I. Notices. All
written communications provided for hereunder (other than communications
provided for under paragraph 2) shall be sent by first class mail or nationwide
overnight delivery service (with charges covered and not sent collection on
demand) and (i) if to any Purchaser, addressed as specified for such
communications in the Purchaser Schedule attached hereto (in the case of the
Series A Notes and Series B Notes) or the Purchaser Schedule attached to the
applicable Confirmation of Acceptance (in the case of any Shelf Notes) or at
such other address as any such Purchaser shall have specified to the Company in
writing, (ii) if to any other holder of any Note, addressed to it at such
address as it shall have specified in writing to the Company or, if any such
other holder shall not have so specified an address, then addressed to such
holder in care of the last holder of such Note which shall have so specified an
address to the Company and (iii) if to the Company, addressed to it at 1000
Lucas Way, Hampton, VA 23666 Attn: Mark Thomson with a copy to DLA
Piper LLP (US), One Atlantic Center, 1200 West Peachtree Street, Suite 2800
Atlanta, Georgia 30309-3450, Attn: Joseph Alexander,
Esquire. Any communication pursuant to paragraph 2 shall be made
by the method specified for such communication in paragraph 2, and shall be
effective to create any rights or obligations under this Agreement only if, in
the case of a telephone communication, an Authorized Officer of the party
conveying the information and of the party receiving the information are parties
to the telephone call, and in the case of a telecopier communication, the
communication is signed by an Authorized Officer of the party conveying the
information, addressed to the attention of an Authorized Officer of the party
receiving the information, and in fact received at the telecopier terminal the
number of which is listed for the party receiving the communication in the
Information Schedule or at such other telecopier terminal as the party receiving
the information shall have specified in writing to the party sending such
information.
11J. Payments Due on Non-Business
Days. Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or interest on, or
Yield-Maintenance Amount payable with respect to, any Note that is due on a date
other than a Business Day shall be made on the next succeeding Business Day
without including the additional days elapsed in the computation of the interest
payable on such next succeeding Business Day; provided that if the
maturity date of any Note is a date other than a Business Day, then and in such
event payment shall be made on the next succeeding Business Day, but shall
include the additional days elapsed in the computation of interest payable on
such next succeeding Business Day.
11K. Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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11L. Descriptive
Headings. The descriptive headings of the several paragraphs
of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
11M. Satisfaction
Requirement. If any agreement, certificate or other writing,
or any action taken or to be taken, is by the terms of this Agreement required
to be satisfactory to any Purchaser, to any holder of Notes or to the Required
Holder(s), the determination of such satisfaction shall be made by such
Purchaser, such holder or the Required Holder(s), as the case may be, in the
sole and exclusive judgment (exercised in good faith) of the Person or Persons
making such determination.
11N. Governing
Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE
OF NEW YORK IN ACCORDANCE WITH THE PROVISIONS OF §5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
11O. Consent to Jurisdiction; Waiver or
Immunities. The Company hereby irrevocably submits to the
jurisdiction of any New York state or Federal court sitting in New York in any
action or proceeding arising out of or relating to this Agreement, and the
Company hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in New York state or Federal
court. The Company hereby irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The Company agrees and
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing, by registered or certified U.S. mail, or by any other
means or mail that requires a signed receipt, of copies of such process to CT
Corporation System at 111 Eighth Avenue, New York, New York
10011. The Company agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing
in this paragraph 11O shall affect the right of any holder of the Notes to serve
legal process in any other manner permitted by law or affect the right of any
holder of the Notes to bring any action or proceeding against the Company or its
property in the courts of any other jurisdiction. To the extent that
the Company has or hereafter may acquire immunity from jurisdiction of any court
or from any legal process (whether through service of notice, attachment prior
to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, the Company hereby irrevocably waives such
immunity in respect of its obligations under this agreement.
74
11P. WAIVER
OF JURY TRIAL. THE COMPANY,
PRUDENTIAL AND THE HOLDERS OF THE NOTES AGREE TO WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT, THE NOTES, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS TRANSACTION AND THE LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. THE HOLDERS OF THE NOTES AND THE COMPANY EACH
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS
BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING
INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. THE HOLDERS OF THE NOTES AND THE COMPANY
FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
11Q. Severalty of
Obligations. The sales of Notes to the Purchasers are to be
several sales, and the obligations of Prudential and the Purchasers under this
Agreement are several obligations. No failure by Prudential or any
Purchaser to perform its obligations under this Agreement shall relieve any
other Purchaser or the Company of any of its obligations hereunder, and neither
Prudential nor any Purchaser shall be responsible for the obligations of, or any
action taken or omitted by, any other such Person hereunder.
11R. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.
11S. Binding
Agreement. When this Agreement is executed and delivered by
the Company, the Series A Purchasers, the Series B Purchasers and Prudential, it
shall become a binding agreement between the Company, the Series A Purchasers,
the Series B Purchasers and Prudential. This Agreement shall also
inure to the benefit of each Purchaser which shall have executed and delivered a
Confirmation of Acceptance, and each such Purchaser shall be bound by this
Agreement to the extent provided in such Confirmation of
Acceptance.
75
11T. Directly or
Indirectly. Where any provision in this Agreement refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether the action in question is
taken directly or indirectly by such Person.
11U. Transaction
References. The Company agrees that Prudential Capital Group
may (a) refer to its role in originating the purchase of the Notes from the
Company and establishing the Facility, as well as the identity of the Company
and the aggregate principal amount and issue date of the Notes and the maximum
aggregate principal amount of the Shelf Notes and the date on which the Facility
was established, on its internet site or in marketing materials, press releases,
published “tombstone” announcements or any other print or electronic medium and
(b) display the Company’s corporate logo in conjunction with any such
reference.
11V. Replacement Intercreditor Agreement
and Collateral Documents. If the Company shall enter into a
new principal credit agreement or loan agreement for the purpose of refinancing
or replacing the Credit Document Obligations, and the parties to such new
principal credit agreement or loan agreement will not enter into the
Intercreditor Agreement, promptly upon receipt by the holders of the Notes of
written request from the Company, the holders of the Notes shall enter into a
new intercreditor agreement with the administrative agent for the holders of the
replacement Credit Document Obligations on substantially the same terms and
conditions of the Intercreditor Agreement entered into on the date hereof,
together with such other terms as the Required Holders shall approve in writing,
and shall authorize the Collateral Agent to enter into new Collateral Documents
on substantially the same terms and conditions of the Collateral Documents
entered into on the date hereof or after the date hereof.
[Signature
Pages Follow]
76
Very
truly yours,
|
||
Measurement
Specialties, Inc.
|
||
By:
|
||
Name:
|
||
Title:
|
[Signature
Page to Note Purchase and Private Shelf Agreement]
The
foregoing Agreement is
|
|||||
hereby
accepted as of the
|
|||||
date
first above written.
|
|||||
Prudential
Investment Management, Inc.
|
|||||
By:
|
|||||
Vice
President
|
|||||
The
Prudential Insurance Company
|
|||||
of
America
|
|||||
By:
|
|||||
Vice
President
|
|||||
MTL
Insurance Company
|
|||||
By:
|
Prudential
Private Placement Investors,
|
||||
L.P.
(as Investment Advisor)
|
|||||
By:
|
Prudential
Private Placement Investors, Inc.
|
||||
(as
its General Partner)
|
|||||
By:
|
|||||
Vice
President
|
|||||
Universal
Prudential Arizona
|
|||||
Reinsurance
Company
|
|||||
By:
|
Prudential
Investment Management, Inc.,
|
||||
as
investment manager
|
|||||
By:
|
|||||
Vice
President
|
[Signature
Page to Note Purchase and Private Shelf Agreement]
Forethought
Life Insurance Company
|
||||
By:
|
Prudential
Private Placement Investors,
|
|||
L.P.
(as Investment Advisor)
|
||||
By:
|
Prudential
Private Placement Investors, Inc.
|
|||
(as
its General Partner)
|
||||
By:
|
||||
Vice
President
|
[Signature
Page to Note Purchase and Private Shelf Agreement]
INFORMATION
SCHEDULE
Authorized Officers for
Prudential
James
McCrane
|
Jay
White
|
Prudential
Capital Group
|
Prudential
Capital Group
|
100
Mulberry Street
|
Suite
500
|
7
Gateway Center Four
|
1170
Peachtree Street
|
Newark,
New Jersey 07102
|
Atlanta,
GA 30309
|
Telephone:
(973) 802-4222
|
Telephone:
(404) 870-3755
|
Facsimile:
(973) 624-6432
|
Facsimile:
(404) 870-3741
|
Charles
Senner
|
Billy
Greer
|
Prudential
Capital Group
|
Prudential
Capital Group
|
100
Mulberry Street
|
Suite
500
|
7
Gateway Center Four
|
1170
Peachtree Street
|
Newark,
New Jersey 07102
|
Atlanta,
GA 30309
|
Telephone:
(973) 802-6660
|
Telephone:
(404) 870-3745
|
Facsimile:
(973) 624-6432
|
Facsimile:
(404) 870-3741
|
Robert
Derrick
|
|
Prudential
Capital Group
|
|
Suite
500
|
|
1170
Peachtree Street
|
|
Atlanta,
GA 30309
|
|
Telephone:
(404) 870-3740
|
|
Facsimile:
(404) 870-3741
|
Authorized Officers for the
Company
Frank
D. Guidone
|
Mark
Thomson
|
Chief
Executive Officer and President
|
Chief
Financial Officer
|
Measurement
Specialties, Inc.
|
Measurement
Specialties, Inc.
|
1000
Lucas Way
|
1000
Lucas Way
|
Hampton,
Virginia 23666
|
Hampton,
Virginia 23666
|
Telephone: (757)
___________
|
Telephone: (757)
766-4224
|
Facsimile: (757)
___________
|
Facsimile: (757)
___________
|
Jeffrey
Kostelni
|
|
Vice
President of Finance/Treasurer
|
|
Measurement
Specialties, Inc.
|
|
1000
Lucas Way
|
|
Hampton,
Virginia 23666
|
|
Telephone: (757)
766-409
|
|
Facsimile: (757)
766-4347
|
[Signature Page to Note
Purchase and Private Shelf Agreement]
PURCHASER
SCHEDULE
5.70% Series A
Senior Notes
due 2015
|
6.15% Series B
Senior Notes
due 2017
|
||||||||
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA
|
$ | 7,000,000.00 | $ | 0 | |||||
(1)
|
All
payments on account of Notes held by such purchaser shall be made by wire
transfer of immediately available funds for credit to:
|
||||||||
Account
Name: Prudential Managed Portfolio
Account
No.: P86188 (please do not include spaces)
|
|||||||||
JPMorgan
Chase Bank
New
York, NY
ABA
No.: 021-000-021
|
|||||||||
Each
such wire transfer shall set forth the name of the Company, a reference to
"5.70% Series A Senior Notes due June 1, 2015, PPN 583421 A*3" and the due
date and application (as among principal, interest and Yield-Maintenance
Amount) of the payment being made.
|
|||||||||
(2)
|
Address
for all notices relating to payments:
|
||||||||
The
Prudential Insurance Company of America
c/o
Investment Operations Group
Gateway
Center Two, 10th Floor
100
Mulberry Street
Newark,
NJ 07102-4077
|
|||||||||
Attention: Manager,
Billings and Collections
|
|||||||||
(3)
|
Address
for all other communications and notices:
|
||||||||
The
Prudential Insurance Company of America
c/o
Prudential Capital Group
1170
Peachtree Street, Suite 500
Atlanta,
GA 30309
|
|||||||||
Attention: Managing
Director
|
|||||||||
(4)
|
Recipient
of telephonic prepayment notices:
|
||||||||
Manager,
Trade Management Group
|
|||||||||
Telephone: (973)
367-3141
|
|||||||||
Facsimile: (888)
889-3832
|
|||||||||
(5)
|
Address
for Delivery of Notes:
|
||||||||
Send
physical security by nationwide overnight delivery service
to:
|
|||||||||
Prudential
Capital Group
1170
Peachtree Street, Suite 500
Atlanta,
GA 30309
|
|||||||||
Attention: Michael
R. Fierro, Esq.
Telephone: (404)
870-3753
|
|||||||||
(6)
|
Tax
Identification No.: 22-1211670
|
5.70% Series A
Senior Notes
due 2015
|
6.15% Series B
Senior Notes
due 2017
|
||||||||
FORETHOUGHT
LIFE INSURANCE COMPANY
|
$ | 3,000,000.00 | $ | 0 | |||||
(1)
|
All
payments on account of Notes held by such purchaser shall be made by wire
transfer of immediately available funds for credit to:
|
||||||||
State
Street Bank
ABA
# 01100-0028
DDA
Account # 24564783
For
Further Credit:
Forethought
Life Insurance Company
Fund
# 3N1H
|
|||||||||
Each
such wire transfer shall set forth the name of the Company, a reference to
"5.70% Series A Senior Notes due June 1, 2015, PPN 583421 A*3" and the due
date and application (as among principal, interest and Yield-Maintenance
Amount) of the payment being made.
|
|||||||||
(2)
|
All
notices of payments and written confirmations of such wire
transfers:
|
||||||||
Forethought
Life Insurance Company
Attn: Russell
Jackson
300
North Meridian
Suite
1800
Indianapolis,
IN 46204
with
copy to:
State
Street Bank
Attn: Deb
Hartner
801
Pennsylvania
Kansas
City, MO 64105
|
|||||||||
(3)
|
Address
for all other communications and notices:
|
||||||||
Prudential
Private Placement Investors, L.P.
c/o
Prudential Capital Group
1170
Peachtree Street, Suite 500
Atlanta,
GA 30309
Attention: Managing
Director
|
|||||||||
(4)
|
Address
for Delivery of Notes:
|
||||||||
(a) Send
physical security by nationwide overnight delivery
service to:
DTC
/ New York Window
55
Water Street
New
York, NY 10041
Attention: Robert
Mendez
Please
include in the cover letter accompanying the Notes a reference to SSB Fund
# 3N1H.
(b) Send
copy by nationwide overnight delivery service to:
Prudential
Capital Group
Gateway
Center 4
100
Mulberry, 7th Floor
Newark,
NJ 07102
Attention: Trade
Management, Manager
Telephone: (973)
367-3141
and
Forethought
Life Insurance Company
Attn: Eric
Todd
300
North Meridian
Suite
1800
Indianapolis,
IN 46204
|
|||||||||
(5)
|
Tax
Identification No.: 06-1016329
|
5.70% Series A
Senior Notes
due 2015
|
6.15% Series B
Senior Notes
due 2017
|
||||||||
UNIVERSAL
PRUDENTIAL ARIZONA REINSURANCE COMPANY
|
$ | 0 | $ | 7,000,000.00 | |||||
(1)
|
All
payments on account of Notes held by such purchaser shall be made by wire
transfer of immediately available funds for credit to:
|
||||||||
JPMorgan
Chase Bank
New
York, NY
ABA
No.: 021-000-021
|
|||||||||
Account
No.: P86393 (please do not include spaces)
Account
Name: UPARC PLAZ Trust 2 - Privates
|
|||||||||
Each
such wire transfer shall set forth the name of the Company, a reference to
"6.15% Senior Notes due June 1, 2017, _____, Security No. INV_____, PPN
583421 A@1", and the due date and application (as among principal,
interest and Yield-Maintenance Amount) of the payment being
made.
|
|||||||||
(2)
|
Address
for all notices relating to payments:
|
||||||||
Universal
Prudential Arizona Reinsurance Company
c/o
The Prudential Insurance Company of America
c/o
Investment Operations Group
Gateway
Center Two, 10th Floor
100
Mulberry Street
Newark,
NJ 07102-4077
|
|||||||||
Attention: Manager,
Billings and Collections
|
|||||||||
(3)
|
Address
for all other communications and notices:
|
||||||||
Universal
Prudential Arizona Reinsurance Company
c/o
Prudential Capital Group
1170
Peachtree Street, Suite 500
Atlanta,
GA 30309
|
|||||||||
Attention: Managing
Director
|
|||||||||
(4)
|
Recipient
of telephonic prepayment notices:
|
||||||||
Manager,
Trade Management Group
|
|||||||||
Telephone: (973)
367-3141
|
|||||||||
Facsimile: (888)
889-3832
|
|||||||||
(5)
|
Address
for Delivery of Notes:
|
||||||||
Send
physical security by nationwide overnight delivery service
to:
Prudential
Capital Group
1170
Peachtree Street, Suite 500
Atlanta,
GA 30309
Attention: Michael
R. Fierro, Esq.
Telephone: (404)
870-3753
|
|||||||||
(6)
|
Tax
Identification No.: 41-2214052
|
5.70% Series A
Senior Notes
due 2015
|
6.15% Series B
Senior Notes
due 2017
|
||||||||
MTL
INSURANCE COMPANY
|
$ | 0 | $ | 3,000,000.00 | |||||
(1)
|
All
payments on account of Notes held by such purchaser shall be made by wire
transfer of immediately available funds for credit to:
|
||||||||
The
Northern Trust Company
ABA
# 071000152
Credit
Wire Account # 5186061000
FFC: 26-32065/MTL
Insurance Company - Prudential
|
|||||||||
Each
such wire transfer shall set forth the name of the Company, a reference to
"6.15% Senior Notes due June 1, 2017, PPN 583421 A@1" and the due date and
application (as among principal, interest and Yield-Maintenance Amount) of
the payment being made.
|
|||||||||
(2)
|
All
notices of payments and written confirmations of such wire
transfers:
|
||||||||
MTL
Insurance Company
1200
Jorie Blvd.
Oak
Brook, IL 60522-9060
Attention: Margaret
Culkeen
|
|||||||||
(3)
|
Address
for all other communications and notices:
|
||||||||
Prudential
Private Placement Investors, L.P.
c/o
Prudential Capital Group
1170
Peachtree Street, Suite 500
Atlanta,
GA 30309
Attention: Managing
Director
|
|||||||||
(4)
|
Address
for Delivery of Notes:
|
||||||||
(a) Send
physical security by nationwide overnight delivery
service to:
The
Northern Trust Company of New York
Harborside
Financial Center 10, Suite 1401
3
Second Street
Northern
Acct. # 26-32065 / Acct. Name: MTL
Insurance
Company - Prudential
Jersey
City, NJ 07311
Attn: Jose
Mero & Rubie Vega
Please
include in the cover letter accompanying the Notes a reference to the
Purchaser's account number (MTL Insurance Company-Prudential; Account
Number: 26-32065).
(b) Send
copy by nationwide overnight delivery service to:
Prudential
Capital Group
Gateway
Center 4
100
Mulberry, 7th Floor
Newark,
NJ 07102
Attention: Trade
Management, Manager
Telephone: (973)
367-3141
|
|||||||||
(5)
|
Tax
Identification No.: 36-1516780
|
SCHEDULE
6A
EXISTING
INDEBTEDNESS
SCHEDULE
6B
EXISTING
LIENS
SCHEDULE
6D
EXISTING
INVESTMENTS
SCHEDULE
6I
EXISTING
RESTRICTIVE AGREEMENTS
SCHEDULE
8A
CAPITALIZATION
SCHEDULE
8F
LITIGATION
SCHEDULE
8G
COMPLIANCE
WITH LAWS
EXHIBIT
A-1
[FORM
OF SERIES A NOTE]
MEASUREMENT
SPECIALTIES, INC.
5.70%
SERIES A SENIOR NOTE, DUE JUNE 1, 2015
No. [_____]
PPN
583421 A*3
ORIGINAL
PRINCIPAL AMOUNT:
ORIGINAL
ISSUE DATE: June 1, 2010
INTEREST
RATE: 5.70% per annum
INTEREST
PAYMENT DATES: September 1, December 1, March 1 and June 1 of each
calendar year commencing on September 1, 2010
FINAL
MATURITY DATE: June 1, 2015
For Value
Received, the undersigned, Measurement Specialties, Inc. (the “Company”), a corporation
organized and existing under the laws of the State of New Jersey, hereby
promises to pay to [____________], or registered assigns, the
principal sum of [_____________________] Dollars, payable on the
Final Maturity Date specified above in an amount equal to the unpaid balance of
the principal hereof, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance hereof at the Interest Rate
per annum specified above if no Event of Default has occurred and is continuing,
payable on each Interest Payment Date specified above and on the Final Maturity
Date specified above, commencing with the Interest Payment Date next succeeding
the date hereof, until the principal hereof shall have become due and payable,
and (b) on the unpaid balance hereof at the Default Rate (as defined in the
Note Purchase Agreement referred to below) if an Event of Default has occurred
and is continuing, and to the extent permitted by law on any overdue payment of
interest, payable at the Default Rate on each Interest Payment Date as aforesaid
(or, at the option of the registered holder hereof, on demand).
Payments
of principal of, interest on and any Yield-Maintenance Amount with respect to
this Note are to be made in lawful money of the United States of America as
provided in the Note Purchase Agreement referred to below.
This Note
is one of a series of Series A Senior Notes (the “Notes”) issued pursuant to the
Note Purchase and Private Shelf Agreement, dated as of June 1, 2010 (as from
time to time amended, the “Note
Purchase Agreement”), among the Company, Prudential Investment
Management, Inc. and the respective Purchasers named therein and is entitled to
the benefits thereof. Unless otherwise indicated, capitalized terms
used in this Note shall have the respective meanings ascribed to such terms in
the Note Purchase Agreement.
This Note
is a registered Note and, as provided in the Note Purchase Agreement, upon
surrender of this Note for registration of transfer accompanied by a written
instrument of transfer duly executed, by the registered holder hereof or such
holder’s attorney duly authorized in writing, a new Note for a like principal
amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer,
the Company may treat the person in whose name this Note is registered as the
owner hereof for the purpose of receiving payment and for all other purposes,
and the Company will not be affected by any notice to the contrary.
This Note
is subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an
Event of Default occurs and is continuing, the principal of this Note may be
declared or otherwise become due and payable in the manner, at the price
(including any applicable Yield-Maintenance Amount) and with the effect provided
in the Note Purchase Agreement.
THIS NOTE
IS INTENDED TO BE PERFORMED IN THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW OF SUCH STATE OF NEW YORK, IN
ACCORDANCE WITH THE PROVISIONS OF §5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
MEASUREMENT
SPECIALTIES, INC.
|
|||
By:
|
|||
Its:
|
EXHIBIT
A-1-2
EXHIBIT
A-2
[FORM
OF SERIES B NOTE]
MEASUREMENT
SPECIALTIES, INC.
6.15%
SERIES B SENIOR NOTE, DUE JUNE 1, 2017
No. [_____]
PPN
583421 A@1
ORIGINAL
PRINCIPAL AMOUNT:
ORIGINAL
ISSUE DATE: June 1, 2010
INTEREST
RATE: 6.15% per annum
INTEREST
PAYMENT DATES: September 1, December 1, March 1 and June 1 of each
calendar year commencing on September 1, 2010
FINAL
MATURITY DATE: June 1, 2017
For Value
Received, the undersigned, Measurement Specialties, Inc. (the “Company”), a corporation
organized and existing under the laws of the State of New Jersey, hereby
promises to pay to [____________], or registered assigns, the
principal sum of [_____________________] Dollars, payable on the
Final Maturity Date specified above in an amount equal to the unpaid balance of
the principal hereof, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance hereof at the Interest Rate
per annum specified above if no Event of Default has occurred and is continuing,
payable on each Interest Payment Date specified above and on the Final Maturity
Date specified above, commencing with the Interest Payment Date next succeeding
the date hereof, until the principal hereof shall have become due and payable,
and (b) on the unpaid balance hereof at the Default Rate (as defined in the
Note Purchase Agreement referred to below) if an Event of Default has occurred
and is continuing, and to the extent permitted by law on any overdue payment of
interest, payable at the Default Rate on each Interest Payment Date as aforesaid
(or, at the option of the registered holder hereof, on demand).
Payments
of principal of, interest on and any Yield-Maintenance Amount with respect to
this Note are to be made in lawful money of the United States of America as
provided in the Note Purchase Agreement referred to below.
This Note
is one of a series of Series B Senior Notes (the “Notes”) issued pursuant to the
Note Purchase and Private Shelf Agreement, dated as of June 1, 2010 (as from
time to time amended, the “Note
Purchase Agreement”), among the Company, Prudential Investment
Management, Inc. and the respective Purchasers named therein and is entitled to
the benefits thereof. Unless otherwise indicated, capitalized terms
used in this Note shall have the respective meanings ascribed to such terms in
the Note Purchase Agreement.
This Note
is a registered Note and, as provided in the Note Purchase Agreement, upon
surrender of this Note for registration of transfer accompanied by a written
instrument of transfer duly executed, by the registered holder hereof or such
holder’s attorney duly authorized in writing, a new Note for a like principal
amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer,
the Company may treat the person in whose name this Note is registered as the
owner hereof for the purpose of receiving payment and for all other purposes,
and the Company will not be affected by any notice to the contrary.
This Note
is subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an
Event of Default occurs and is continuing, the principal of this Note may be
declared or otherwise become due and payable in the manner, at the price
(including any applicable Yield-Maintenance Amount) and with the effect provided
in the Note Purchase Agreement.
THIS NOTE
IS INTENDED TO BE PERFORMED IN THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW OF SUCH STATE OF NEW YORK, IN
ACCORDANCE WITH THE PROVISIONS OF §5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
MEASUREMENT
SPECIALTIES, INC.
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By:
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Its:
|
EXHIBIT
A-2-2
EXHIBIT
A-3
FORM
OF SHELF NOTE
MEASUREMENT
SPECIALTIES, INC.
[____]%
Series ___ Senior Note, Due [__________, ____]
No. [_____]
PPN[______________]
ORIGINAL
PRINCIPAL AMOUNT:
ORIGINAL
ISSUE DATE:
INTEREST
RATE:
INTEREST
PAYMENT DATES:
FINAL
MATURITY DATE:
PRINCIPAL
PREPAYMENT DATES AND AMOUNTS:
For Value
Received, the undersigned, Measurement Specialties, Inc. (the “Company”), a corporation
organized and existing under the laws of the State of New Jersey, hereby
promises to pay to [____________], or registered assigns, the
principal sum of [_____________________] Dollars [on the Final Maturity Date
specified above (or so much thereof as shall not have been prepaid),] [, payable on the Principal
Prepayment Dates and in the amounts specified above, and on the Final Maturity
Date specified above in an amount equal to the unpaid balance of the principal
hereof,] with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on
the unpaid balance hereof at the Interest Rate per annum specified above if no
Event of Default has occurred and is continuing, payable on each Interest
Payment Date specified above and on the Final Maturity Date specified above,
commencing with the Interest Payment Date next succeeding the date hereof, until
the principal hereof shall have become due and payable, and (b) on the
unpaid balance hereof at the Default Rate (as defined in the Note Purchase
Agreement referred to below) if an Event of Default has occurred and is
continuing, and to the extent permitted by law on any overdue payment of
interest, payable at the Default Rate on each Interest Payment Date as aforesaid
(or, at the option of the registered holder hereof, on demand).
Payments
of principal of, interest on and any Yield-Maintenance Amount with respect to
this Note are to be made in lawful money of the United States of America as
provided in the Note Purchase Agreement referred to below.
This Note
is one of a series of Senior Notes (the “Notes”) issued pursuant to the
Note Purchase and Private Shelf Agreement, dated as of June 1, 2010 (as from
time to time amended, the “Note
Purchase Agreement”), among the Company, Prudential Investment
Management, Inc. and the respective Purchasers named therein and is entitled to
the benefits thereof. Unless otherwise indicated, capitalized terms
used in this Note shall have the respective meanings ascribed to such terms in
the Note Purchase Agreement.
This Note
is a registered Note and, as provided in the Note Purchase Agreement, upon
surrender of this Note for registration of transfer accompanied by a written
instrument of transfer duly executed, by the registered holder hereof or such
holder’s attorney duly authorized in writing, a new Note for a like principal
amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer,
the Company may treat the person in whose name this Note is registered as the
owner hereof for the purpose of receiving payment and for all other purposes,
and the Company will not be affected by any notice to the contrary.
[The Company will make
required prepayments of principal on the dates and in the amounts specified in
the Note Purchase Agreement.] [This Note is [also] subject to [optional] prepayment, in whole or from
time to time in part, at the times and on the terms specified in the Note
Purchase Agreement, but not otherwise.]
If an
Event of Default occurs and is continuing, the principal of this Note may be
declared or otherwise become due and payable in the manner, at the price
(including any applicable Yield-Maintenance Amount) and with the effect provided
in the Note Purchase Agreement.
THIS NOTE
IS INTENDED TO BE PERFORMED IN THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW OF SUCH STATE OF NEW YORK, IN
ACCORDANCE WITH THE PROVISIONS OF §5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
MEASUREMENT
SPECIALTIES, INC.
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By:
|
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Name:
|
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Title:
|
EXHIBIT
A-3-2
EXHIBIT
B
[FORM
OF FUNDS DELIVERY INSTRUCTION]
[Company’s Letterhead]
[List
Purchasers]
c/o
Prudential Capital Group
1170
Peachtree St., NE
Atlanta,
GA 30309
Re: Funds Delivery Instruction/Series
[ ] Notes
Ladies
and Gentlemen:
As
contemplated by paragraph 2 of the Note Purchase and Private Shelf Agreement,
dated as of June 1, 2010, between us, the undersigned hereby instructs you to
deliver, on the Series [__] Closing Day, the proceeds of the Series [__] Notes
in the manner required by paragraph 2 to the undersigned’s account identified
below:
Account
Name:
Account
No:
Bank:
Bank City
& State:
Bank ABA
No:
Reference:
This
instruction has been executed and delivered by an authorized representative of
the undersigned.
Very
truly yours,
|
|||
MEASUREMENT
SPECIALTIES, INC.
|
|||
By:
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|||
Title:
|
EXHIBIT
C
FORM
OF REQUEST FOR PURCHASE
MEASUREMENT
SPECIALTIES, INC.
Reference
is made to the Note Purchase and Private Shelf Agreement (the “Agreement”), dated as of June
1, 2010, between Measurement Specialties, Inc. (the “Company”), on the one hand,
and Prudential Investment Management, Inc. (“Prudential”) and each
Prudential Affiliate which becomes party thereto, on the other
hand. Capitalized terms used and not otherwise defined herein shall
have the respective meanings specified in the Agreement.
Pursuant
to paragraph 2B(3) of the Agreement, the Company hereby makes the following
Request for Purchase:
|
1.
|
Aggregate
principal amount of
|
the Shelf
Notes covered hereby
(the
“Notes”)
$__________1
|
2.
|
Individual
specifications of the Notes:
|
Principal
Amount*
|
Final
Maturity
Date
|
Principal
Prepayment
Dates and
Amounts
|
Interest
Payment
Period
|
|||
[___] in arrears
|
|
3.
|
Use
of proceeds of the Notes:
|
|
4.
|
Proposed
day for the closing of the purchase and sale of the
Notes:
|
|
5.
|
The
purchase price of the Notes is to be transferred
to:
|
Name and Address
|
||
and ABA Routing
|
Number of
|
|
Number of Bank
|
Account
|
*
Minimum principal amount of $10,000,000.
6. The
Company certifies that (a) the representations and warranties contained in
Section 8 of the Agreement are true in all material respects on and as of the
date of this Request for Purchase and (b) that there exists on the date of this
Request for Purchase no Event of Default or Default.
Dated:
MEASUREMENT
SPECIALTIES, INC.
|
|||
By:
|
|||
Title:
|
EXHIBIT
C-2
EXHIBIT
D
FORM
OF CONFIRMATION OF ACCEPTANCE
Reference
is made to the Note Purchase and Private Shelf Agreement (the “Agreement”), dated as of June
1, 2010, between Measurement Specialties, Inc. (the “Company”), on the one hand,
and Prudential Investment Management, Inc. (“Prudential”) and each
Prudential Affiliate which becomes party thereto, on the other
hand. Capitalized terms used and not otherwise defined herein shall
have the respective meanings specified in the Agreement.
Prudential
or the Prudential Affiliate which is named below as a Purchaser of Notes hereby
confirms the representations as to such Notes set forth in paragraph 9 of the
Agreement, and agrees to be bound by the provisions of paragraphs 2B(5) and
2B(7) of the Agreement relating to the purchase and sale of such Notes and by
the provisions of the second sentence of paragraph 11A of the
Agreement.
Pursuant
to Section 2B(5) of the Agreement, an Acceptance with respect to the following
Accepted Notes is hereby confirmed:
I.
|
Accepted
Notes: Aggregate principal amount
$__________________
|
|
(A)
|
(a) Name
of Purchaser:
|
(b) Principal
amount:
(c) Final
maturity date:
(d) Principal
prepayment dates and amounts:
(e) Interest
rate:
(f) Interest
payment
period: [_______] in arrears
(g) Payment
and notice instructions: As set forth on attached
Purchaser
Schedule
|
(B)
|
(a) Name
of Purchaser:
|
(b) Principal
amount:
(c) Final
maturity date:
(d) Principal
prepayment dates and amounts:
(e) Interest
rate:
(f) Interest
payment
period: [_______]
in arrears
(g) Payment
and notice instructions: As set forth on attached
Purchaser Schedule
[(C), (D)..... same
information as above.]
II.
|
Closing
Day:
|
MEASUREMENT
SPECIALTIES, INC.
|
||
By:
|
||
Title:
|
||
Dated:
|
||
[PRUDENTIAL
INVESTMENT
|
||
MANAGEMENT,
INC.]
|
||
By
|
||
Vice
President
|
||
[PRUDENTIAL
AFFILIATE]
|
||
By
|
||
Vice
President
|
[ATTACH PURCHASER
SCHEDULES]
EXHIBIT D-2
EXHIBIT
E
[FORM OF OPINION OF COMPANY'S
COUNSEL]
[Letterhead of
________________]
[Date of Closing]
[Names and
addresses
of
Purchasers]
Ladies
and Gentlemen:
[We have acted as counsel for
Measurement Specialties, Inc. (the “Company”) in connection] [As _______________ of
Measurement Specialties, Inc. (the “Company”), I am familiar] with the Note Agreement,
dated as of April [__], 2010, [among] [between] the Company and you (the
“Note Agreement”), pursuant to which the Company has issued to you today its
____% Senior Notes due [_____________, ____] in the aggregate principal amount
of $___________. Capitalized terms used and not otherwise defined
herein shall have the respective meanings specified in the Note
Agreement. This letter is being delivered to you in satisfaction of
the condition set forth in paragraph 3A(v) of the Note Agreement and with the
understanding that you are purchasing the Notes in reliance on the opinions
expressed herein.
In this
connection, [we] [I] have examined such
certificates of public officials, certificates of officers of the Company and
copies certified to [our] [my] satisfaction of corporate
documents and records of the Company and of other papers, and have made such
other investigations, as [we] [I] have deemed relevant and
necessary as a basis for [our] [my] opinion hereinafter set
forth. [We] [I] have relied upon such
certificates of public officials and of officers of the Company with respect to
the accuracy of material factual matters contained therein which were not
independently established. With respect to the opinion expressed in
paragraph 3 below, [we] [I] have also relied upon the
representation made by each of you in paragraph 9A of the Note
Agreement.
Based on
the foregoing and upon such investigation as we [I] have deemed necessary, it is
[our] [my] opinion that:
1. The
Company is a corporation duly organized and validly existing in good standing
under the laws of the State of __________________. The Company has
the corporate power to carry on its business as now being
conducted. The Company has the corporate power to enter into the
Agreement and perform its obligations under the Agreement and the
Notes.
2. The
Note Agreement and the Notes have been duly authorized by all requisite
corporate action and duly executed and delivered by authorized officers of the
Company, and are valid obligations of the Company, legally binding upon and
enforceable against the Company in accordance with their respective terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
3. It
is not necessary in connection with the offering, issuance, sale and delivery of
the Notes under the circumstances contemplated by the Note Agreement to register
the Notes under the Securities Act or to qualify an indenture in respect of the
Notes under the Trust Indenture Act of 1939, as amended.
4. The
extension, arranging and obtaining of the credit represented by the Notes do not
result in any violation of Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
5. The
execution and delivery of the Note Agreement and the Notes, the offering,
issuance and sale of the Notes and fulfillment of and compliance with the
respective provisions of the Note Agreement and the Notes do not conflict with,
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the creation of any
Lien upon any of the properties or assets of the Company pursuant to, or require
any authorization, consent, approval, exemption or other action by or notice to
or filing with any court, administrative or governmental body or other Person
(other than routine filings after the date hereof with the Securities and
Exchange Commission and/or state Blue Sky authorities) pursuant to, the charter
or by-laws of the Company, any applicable law (including any securities or Blue
Sky law), statute, rule or regulation or (insofar as is known to [us] [me] after having made due
inquiry with respect thereto) any agreement (including, without limitation, any
agreement listed in Schedule 8G to the
Note Agreement), instrument, order, judgment or decree to which the Company is a
party or otherwise subject.
[ADD
OPINIONS RE: COLLATERAL.]
Very
truly
yours,