Exhibit 4.6.2
________________________________________________________________________________
________________________________________________________________________________
OLD DOMINION FREIGHT LINE, INC.
_________________________________
NOTE PURCHASE AND SHELF AGREEMENT
_________________________________
Dated as of May 1, 2001
$50,000,000 6.93% Senior Guaranteed Notes Due August 10, 2008
Up To $15,000,000 Senior Guarantied Shelf Notes
________________________________________________________________________________
________________________________________________________________________________
TABLE OF CONTENTS
PAGE
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1. AUTHORIZATION OF
NOTES............................................................................ 1
1.1. Authorization of Issue of Initial Notes................................... 1
1.2. Authorization of Shelf Notes.............................................. 1
2. SALE AND PURCHASE OF NOTES....................................................... 2
2.1. Purchase and Sale of Initial Notes........................................ 2
2.2. Purchase and Sale of the Shelf Notes...................................... 2
3.
CLOSING.......................................................................... 6
3.1. Closing of Initial Notes.................................................. 6
3.2. Closing of Shelf Notes.................................................... 6
4. CONDITIONS TO CLOSING............................................................ 7
4.1. Representations and Warranties............................................ 7
4.2. Performance; No Default................................................... 7
4.3. Compliance Certificates................................................... 7
4.4. Opinions of Counsel....................................................... 8
4.5. Purchase Permitted By Applicable Law, etc................................. 8
4.6. Sale of Other Notes....................................................... 8
4.7. Payment of Special Counsel Fees........................................... 9
4.8. Private Placement Number.................................................. 9
4.9. Changes in Corporate Structure............................................ 9
4.10. Proceedings and Documents................................................. 9
4.11. Payment of Structuring Fee................................................ 9
4.12. Subsidiary Guaranty....................................................... 10
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................................... 10
5.1. Organization; Power and Authority......................................... 10
5.2. Authorization, etc........................................................ 10
5.3. Disclosure................................................................ 10
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.......... 11
5.5. Financial Statements...................................................... 11
5.6. Compliance with Laws, Other Instruments, etc.............................. 12
5.7. Governmental Authorizations, etc.......................................... 12
5.8. Litigation; Observance of Agreements, Statutes and Orders................. 12
5.9. Taxes..................................................................... 12
5.10. Title to Property; Leases................................................. 13
5.11. Licenses, Permits, etc.................................................... 13
5.12. Compliance with ERISA..................................................... 13
5.13. Private Offering by the Company........................................... 14
5.14. Use of Proceeds; Margin Regulations....................................... 14
2
5.15. Existing Debt; Future Liens.............................................. 14
5.16. Foreign Assets Control Regulations, etc.................................. 15
5.17. Status under Certain Statutes............................................ 15
5.18. Environmental Matters.................................................... 15
6. REPRESENTATIONS OF THE PURCHASER................................................ 17
6.1. Purchase for Investment.................................................. 17
6.2. Source of Funds.......................................................... 17
7. INFORMATION AS TO COMPANY....................................................... 18
7.1. Financial and Business Information....................................... 18
7.2. Officer's Certificate.................................................... 21
7.3. Inspection............................................................... 21
8. PREPAYMENT OF THE NOTES......................................................... 22
8.1. Required Prepayments..................................................... 22
8.2. Optional Prepayments with Yield-Maintenance Amount....................... 22
8.3. Prepayment of Notes Upon Change in Control............................... 24
8.4. Allocation of Partial Prepayments........................................ 25
8.5. Maturity; Surrender, etc................................................. 25
8.6. Purchase of Notes........................................................ 26
8.7. Yield-Maintenance Amount................................................. 26
9. AFFIRMATIVE COVENANTS........................................................... 27
9.1. Compliance with Law...................................................... 27
9.2. Insurance................................................................ 28
9.3. Maintenance of Properties................................................ 28
9.4. Payment of Taxes and Claims.............................................. 28
9.5. Corporate Existence, etc................................................. 28
9.6. Waiver Agreements........................................................ 29
10. NEGATIVE COVENANTS.............................................................. 29
10.1. Consolidated Tangible Net Worth.......................................... 29
10.2. Fixed Charges Coverage Ratio............................................. 29
10.3. Limitations On Debt...................................................... 29
10.4. Liens.................................................................... 29
10.5. Restricted Payments And Restricted Investments........................... 31
10.6. Merger, Consolidation, Etc............................................... 32
10.7. Sale Of Assets, Etc...................................................... 33
10.8. Sale-And-Leasebacks...................................................... 33
10.9. Transactions With Affiliates............................................. 34
10.10. Line Of Business......................................................... 34
11. EVENTS OF DEFAULT............................................................... 34
3
12. REMEDIES ON DEFAULT, ETC........................................................ 37
12.1. Acceleration............................................................. 37
12.2. Other Remedies........................................................... 38
12.3. Rescission............................................................... 38
12.4. No Waivers or Election of Remedies, Expenses, etc........................ 38
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES................................... 38
13.1. Registration of Notes.................................................... 38
13.2. Transfer and Exchange of Notes........................................... 39
13.3. Replacement of Notes..................................................... 39
14. PAYMENTS ON NOTES............................................................... 40
14.1. Place of Payment......................................................... 40
14.2. Home Office Payment...................................................... 40
15. EXPENSES, ETC................................................................... 40
15.1. Transaction Expenses..................................................... 40
15.2. Survival................................................................. 41
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.................... 41
17. AMENDMENT AND WAIVER............................................................ 41
17.1. Requirements............................................................. 41
17.2. Solicitation of Holders of Notes......................................... 42
17.3. Binding Effect, etc...................................................... 42
17.4. Notes held by Company, etc............................................... 42
18. NOTICES......................................................................... 43
19. REPRODUCTION OF DOCUMENTS....................................................... 43
20. CONFIDENTIAL INFORMATION........................................................ 43
21. SUBSTITUTION OF PURCHASER....................................................... 44
22. MISCELLANEOUS................................................................... 45
22.1. Successors and Assigns................................................... 45
22.2. Payments Due on Non-Business Days........................................ 45
22.3. Severability............................................................. 45
22.4. Construction............................................................. 45
22.5. Counterparts............................................................. 45
22.6. Governing Law............................................................ 46
4
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE C -- Investments
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.12 -- ERISA Affiliates and Plans
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Debt
SCHEDULE 10.4 -- Liens
EXHIBIT 1.1 -- Form of 6.93% Senior Note due August 10, 2008
EXHIBIT 1.2 -- Form of Senior Shelf Note
EXHIBIT 2.2(d) -- Form of Request for Purchase
EXHIBIT 2.2(f) -- Form of Confirmation of Acceptance
EXHIBIT 4.3(a) -- Form of Officer's Certificate
EXHIBIT 4.3(b) -- Form of Secretary's Certificate
EXHIBIT 4.4(a)(i) -- Form of Opinion of Special Counsel for the Company
EXHIBIT 4.4(a)(ii) -- Form of Opinion of Special Counsel for the Purchasers
EXHIBIT 4.12 -- Form of Guaranty Agreement
ANNEX 1 -- Authorized Officers of Prudential
5
OLD DOMINION FREIGHT LINE, INC
1730 Westchester Drive
High Point, NC 27261
$50,000,000 6.93% Senior Guarantied Notes due August 10, 2008
Up to $15,000,000 Shelf Notes
May 1, 2001
To The Prudential Insurance Company of America ("Prudential")
and each Prudential Affiliate (as hereinafter defined)
which becomes bound by certain provisions of this Agreement
as hereinafter provided (together with Prudential, the "Purchasers"):
Ladies and Gentlemen:
Old Dominion Freight Line, Inc., a Virginia corporation (together with
its successors and assigns, the "Company"), agrees with the Purchasers as
follows:
AUTHORIZATION OF NOTES
Authorization of Issue of Initial Notes.
The Company will authorize the issue and sale of $50,000,000 aggregate
principal amount of its 6.93% Senior Guarantied Notes due August 10, 2008 (the
"Initial Notes", such term to include any such notes issued in substitution
therefor pursuant to Section 13 of this Agreement (as hereinafter defined)). The
Initial Notes shall be substantially in the form set out in Exhibit 1.1, with
such changes therefrom, if any, as may be approved by each Purchaser and the
Company. Certain capitalized terms used in this Agreement are defined in
Schedule B; references to a "Schedule" or an "Exhibit" are, unless otherwise
specified, to a Schedule or an Exhibit attached to this Agreement.
Authorization of Shelf Notes.
The Company may authorize the issue of its senior guarantied promissory
notes (the "Shelf Notes") in an aggregate principal amount up to $15,000,000, to
be dated the date of issue thereof, to mature, in the case of each Shelf Note so
issued, no more than 12 years after the date of original issuance thereof, to
have an average life, in the case of each Shelf Note so issued, of no more than
eight years after the date of original issuance thereof, to bear interest on the
unpaid balance thereof (payable quarterly or semiannually) 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 Section 2.2(f)
hereof, and to be substantially in the form of Exhibit 1.2 attached hereto. The
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aggregate principal amount of Initial Notes and Shelf Notes outstanding at any
time shall not exceed the Available Facility Amount at such time. The term
"Shelf Notes" as used herein shall
include each Shelf Note delivered by the Company 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. Shelf Notes which have (a) the
same final maturity, (b) the same installment payment dates, (c) the same
installment payment amounts (as a percentage of the original principal amount of
each Shelf Note), (d) the same interest rate and (e) the same interest payment
periods, are herein called a "Series" of Shelf Notes. The Initial Notes together
with the Shelf Notes are collectively referred to herein as the "Notes."
SALE AND PURCHASE OF NOTES.
Purchase and Sale of Initial Notes.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to each Purchaser and each Purchaser will purchase from the
Company, at the Initial Closing provided for in Section 3.1, Initial Notes in
the principal amount specified opposite each Purchaser's name in Schedule A at
the purchase price of 100% of the principal amount thereof. The obligations of
the Purchasers under this Agreement are several and not joint obligations and no
Purchaser shall have any liability to any Person for the performance or
non-performance by any other Purchaser hereunder.Purchase and Sale of the Shelf
Notes.
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". 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 capital
commitment by Prudential or any Prudential Affiliate. NOTWITHSTANDING THE
WILLINGNESS OF PRUDENTIAL AND PRUDENTIAL AFFILIATES 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.
Issuance Period. Shelf Notes may be issued and sold pursuant to this
Agreement until the earliest of (i) the third anniversary of the Initial Closing
(or if such anniversary is not a Business Day, the Business Day next preceding
such anniversary), (ii) the 30th day after Prudential shall have given to the
Company, or the Company shall have given to Prudential, a notice stating that it
elects to terminate the issuance and sale of Shelf Notes pursuant to this
Agreement (or if such 30th day is not a Business Day, the Business Day next
preceding such 30th day), (iii) the termination of the Facility under Section 12
of this Agreement, and (iv) the acceleration of any Note under Section 12 of
this Agreement. The period during which Shelf Notes may be issued and sold
pursuant to this Agreement is herein called the "Issuance Period".
Periodic Spread Information. Not later than 9:30 A.M. (New York City
local time) on a Business Day during the Issuance Period if there is an
Available Facility Amount on such
Business Day, the Company may request by telecopier or telephone, and within a
reasonable time after such request, Prudential will, to the extent reasonably
practicable, provide to the Company on such Business Day (or, if such request is
received after 9:30 A.M. (New York City local time) on such Business Day, on the
following Business Day), information (by telecopier or telephone) with respect
to various spreads at which Prudential or Prudential Affiliates might be
interested in purchasing Shelf Notes at different average lives; provided,
however, that the Company may not make such requests more frequently than once
in every five Business Days or such other period as shall be mutually agreed to
by the Company and Prudential. The amount and content of information so provided
shall be in the sole discretion of Prudential but it is the intent of Prudential
to provide information which will be of use to the Company in determining
whether to initiate procedures for use of the Facility. Information so provided
shall not constitute an offer to purchase Shelf Notes, and neither Prudential
nor any Prudential Affiliate shall be obligated to purchase Shelf Notes at the
spreads specified. Information so provided shall be representative of potential
interest only for the period commencing on the day such information is provided
and ending on the earlier of the fifth Business Day after such day or the first
day after such day on which further spread information is provided. Prudential
may suspend or terminate providing information pursuant to this Section 2.2(c)
if, in its sole discretion, it determines that there has been an adverse change
in the credit quality of the Company after the date of this Agreement.
Request for Purchase. The Company may from time to time during the
Issuance Period make requests in writing 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 and confirmed by nationwide overnight
delivery service, and shall (i) specify the aggregate principal amount of the
Shelf Notes covered thereby, which shall not be less than $5,000,000 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, installment
payment dates and amounts and interest payment periods (which may be quarterly
or semi-annually in arrears) of the Shelf Notes covered thereby, (iii) specify
the use of proceeds of such Shelf Notes and represent that the proceeds shall
not be used for the purpose of financing a hostile tender offer, (iv) specify
the proposed Applicable Shelf Closing Day of the purchase and sale of such Shelf
Notes, which shall be a Business Day during the Issuance Period not less than
ten days and not more than 20 days after the date that such Request for Purchase
is telecopied to Prudential, (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 Applicable Shelf Closing Day for such
purchase and sale, (vi) certify that the representations and warranties
contained in Section 5 hereof are true on and as of the date such Request for
Purchase is telecopied to Prudential except to the extent of changes caused by
the transactions herein contemplated 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 2.2(d) attached hereto. Each Request for Purchase shall
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be in writing and shall be deemed made when received by Prudential upon delivery
by the overnight delivery service referred to in this Section 2.2(d).
Rate Quotes. Not later than five Business Days after the Company shall have
given Prudential a Request for Purchase pursuant to Section 2.2(d) hereof,
Prudential may provide (by telephone promptly thereafter confirmed by
telecopier, in each case no earlier than 9:30 A.M. and no later than 1:00 P.M.
New York City local time) interest rate quotes for the several principal
amounts, maturities, installment payment 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 until
such balance shall have become due and payable, at which Prudential or a
Prudential Affiliate would be willing to purchase such Shelf Notes at 100% of
the principal amount thereof.
Acceptance. Within 30 minutes after Prudential shall have provided any
interest rate quotes pursuant to Section 2.2(e) hereof or in the event that due
to conditions in the market place it shall not be feasible to hold such interest
rate quotes open 30 minutes, such shorter period as Prudential may specify to
the Company (such period herein called the "Acceptance Window"), the Company
may, subject to Section 2.2(g) hereof, elect to accept such interest rate quotes
as to not less than $5,000,000 in 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 (but not earlier than 9:30 A.M. or later
than 2:00 P.M., New York City local time) that the Company elects to accept such
interest rate quotes, specifying the Shelf Notes (each such Shelf Note being
herein called an "Accepted Note") as to which such acceptance (herein called an
"Acceptance") relates. The day the Company notifies Prudential of an Acceptance
with respect to any Accepted Shelf Notes is herein called the "Acceptance Day"
for such Accepted Shelf 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 Section 2.2(g) hereof 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 Shelf Notes at 100% of the principal
amount of such Shelf Notes. Prior to the close of business on the Business Day
next following the Acceptance Day, the Company, Prudential and each Prudential
Affiliate which is to purchase any such Accepted Shelf Notes will execute a
confirmation of such Acceptance substantially in the form of Exhibit 2.2(f)
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attached hereto (herein called a "Confirmation of Acceptance").
Market and Other Disruptions. Notwithstanding the provisions of Section
2.2(f) hereof, if Prudential shall have provided interest rate quotes pursuant
to Section 2.2(e) hereof and thereafter prior to the time an Acceptance with
respect to such quotes shall have been notified to Prudential in accordance with
Section 2.2(f) hereof there shall occur a general suspension, material
limitation, or significant disruption of trading
(i) in securities generally on the New York Stock
Exchange, or
(ii) in the market for U.S. Treasury securities or other
financial instruments,
then such interest rate quotes shall expire, and no purchase or sale of Shelf
Notes hereunder shall be made based on such expired interest rate quotes. If the
Company thereafter notifies Prudential of the Acceptance of any such interest
rate quotes, such Acceptance shall be ineffective for all purposes of this
Agreement, and Prudential shall promptly notify the Company that the provisions
of this Section 2.2(g) are applicable with respect to such Acceptance.
Fees.
(i) Issuance Fee. The Company will pay to Prudential
in immediately available funds a fee on each Applicable Shelf
Closing Day that occurs on or after October 31, 2001, in an
amount equal to 0.125% of the
aggregate principal amount of Shelf Notes sold to Prudential
or Prudential Affiliates on such Applicable Shelf Closing Day.
(ii) Delayed Delivery Fee. If the closing of the
purchase and sale of any Accepted Note is delayed beyond the
original Applicable Shelf Closing Day for such Accepted Note
for any reason (other than the failure of Prudential to
purchase such Accepted Note upon satisfaction of all
conditions to such purchase, as set forth in Section 4), the
Company will pay to Prudential on the last Business Day of
each calendar month, commencing with the first such day to
occur after the original Applicable Shelf Closing Day for such
Accepted Note and ending with the last such day to occur prior
to the Cancellation Date or the actual Applicable Shelf
Closing Day of such purchase and sale, and on the Cancellation
Date or actual Applicable Shelf Closing Day of such purchase
and sale, 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 an
alternative investment selected by Prudential on the date
Prudential receives notice of the delay in the closing for
such Accepted Note having a maturity date 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 Applicable Shelf Closing Day
for such Accepted Note (in the case of the first such payment
with respect to such Accepted Note) or from and including the
date of the next preceding payment (in the case of any
subsequent Delayed Delivery Fee payment with respect to such
Accepted Note) to but excluding the date of such payment; and
"PA" means Principal Amount, i.e., the principal amount of the
Accepted Note for which the calculation is being made (or if
the Accepted Note was to be purchased at a premium or
discount, the purchase price, including any accrued interest).
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
Applicable Shelf Closing Day for such Accepted Note, as the
same may be rescheduled from time to time in compliance with
Section 3.2 hereof.
(iii) Cancellation Fee. If the Company at any time
notifies Prudential in writing that it is canceling the
closing of the purchase and sale of any Accepted Note (or on
the next Business Day if Prudential receives such notice after
4:00 P.M. (New York City local time), or if Prudential
notifies the Company in writing under the circumstances set
forth in the last sentence of Section 3.2 hereof that the
closing of the purchase and sale of such Accepted Note is to
be cancelled, 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 Prudential in immediately available funds an amount (the
"Cancellation Fee") calculated as follows:
PI x PA
where "PI" means Price Increase, calculated as follows: 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
Note(s) on the Acceptance Day for such Accepted Note by (B)
such bid price, such bid and ask prices to be determined by
reference to the display designated as "Page 678" on the
Bridge Telerate Service (or such other display as may replace
Page 678 on the Bridge Telerate Service) for actively traded
U.S. Treasury securities, and each price to be based on a U.S.
Treasury security having a par value of $100.00 and rounded to
the second decimal place, and "PA" has the meaning ascribed to
it in Section 2(h)(ii) hereof. In no case shall the
Cancellation Fee be less than zero.
CLOSING
Closing of Initial Notes.
The sale and purchase of the Initial Notes to be purchased by the
Purchasers shall occur at the offices of Bingham Dana, LLP, 399 Park Avenue, New
York, NY 10022-4689, at 9:00 A.M. (New York City local time) at a closing (the
"Initial Closing") on May 1, 2001 or on such other Business Day thereafter on or
prior to May 10, 2001 as may be agreed upon by the Company and the Purchasers.
At the Initial Closing the Company will deliver to each Purchaser the Initial
Notes to be purchased by it in the form of a single Initial Note (or such
greater number of Initial Notes in denominations of at least $100,000 as each
such Purchaser may request) dated the date of the Initial Closing and registered
in such Purchaser's name (or in the name of its nominee), against delivery by
each such Purchaser to the Company or its order of immediately available funds
in the amount of the purchase price therefor by wire transfer of immediately
available funds for the account of the Company to account number 2073781132196
at First Union National Bank, Charlotte, North Carolina; ABA #053000219; Account
Name: Old Dominion Freight Line, Inc. (Concentration Account). If at the Initial
Closing the Company shall fail to tender such Initial Notes to each Purchaser as
provided above in this Section 3.1, or any of the conditions specified in
Section 4 shall not have been fulfilled to each Purchaser's satisfaction, each
Purchaser shall, at its election, be relieved of all further obligations under
this Agreement, without thereby waiving any rights each such Purchaser may have
by reason of such failure or such nonfulfillment.
Closing of Shelf Notes.
Not later than 11:30 A.M. (New York City local time) on the Applicable
Shelf 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 the Prudential Capital Group, Two Ravinia Drive, Suite 1400, Atlanta,
GA 30346, the Accepted Notes to be purchased by such Purchaser in the form of
one or more Shelf Notes in authorized denominations as such Purchaser may
request for each Series of Accepted Notes to be purchased on the Applicable
Shelf Closing
Day, dated the Applicable Shelf 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 Shelf Notes.
If the Company fails to tender to any Purchaser the Accepted Notes to be
purchased by such Purchaser on the scheduled Applicable Shelf Closing Day for
such Accepted Notes as provided above in this Section 3.2, or any of the
conditions specified in Section 4 hereof shall not have been fulfilled by the
time required on such scheduled Applicable Shelf Closing Day, the Company shall,
prior to 1:00 P.M., New York City local time, on such scheduled Applicable Shelf
Closing Day notify such Purchaser in writing whether (x) 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 ten Business Days after
such scheduled Applicable Shelf Closing Day (the "Rescheduled Closing Day"),
certifying to such Purchaser that the Company reasonably believes that the
Company will be able to comply with the conditions set forth in Section 4 hereof
on such Rescheduled Closing Day and the Company will pay the Delayed Delivery
Fee in accordance with Section 2.2(h)(ii) hereof, or (y) such closing is to be
cancelled as provided in Section 2.2(h)(iii) hereof. In the event that the
Company shall fail to give such notice referred to in the preceding sentence,
such Purchaser may at its election, at any time after 1:00 P.M., New York City
local time, on such scheduled Applicable Shelf Closing Day, notify the Company
in writing that such closing is to be cancelled as provided in Section
2.2(h)(iii) hereof. 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.
CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and pay for the Notes to be
sold to it at the Initial Closing and/or the Applicable Shelf Closing Day (in
either case, each an "Applicable Closing") is subject to the fulfillment to its
satisfaction, prior to or at such Applicable Closing, of the following
conditions:
Representations and Warranties.
The representations and warranties of the Company in this Agreement
shall be correct when made and at the time of each such Applicable Closing.
Performance; No Default.
The Company shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied with
by it prior to or at each such Applicable Closing and after giving effect to the
issue and sale of the Notes (and the application of the proceeds thereof as
contemplated by Schedule 5.14 or the Request for Purchase, as the case may be)
no Default or Event of Default shall have occurred and be continuing.
Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to
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each Purchaser an Officer's Certificate,dated the date of the
Applicable Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled,
substantially in the form of Exhibit 4.3(a) hereto.
(b) Secretary's Certificate. The Company shall have delivered to
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each Purchaser a certificate dated the date of the Applicable Closing
certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of
the Notes and this Agreement, substantially in the form of Exhibit
4.3(b) hereto.
Opinions of Counsel.
(a) Initial Closing. Each Purchaser shall have received opinions in
form and substance satisfactory to it, (i) dated the date of each Applicable
Closing from Joel B. McCarty, Esq., counsel for the Company, covering the
matters set forth in Exhibit 4.4(a)(i) and covering such other matters incident
to the transactions contemplated hereby as such Purchaser or its counsel may
reasonably request (and the Company hereby instructs its counsel to deliver such
opinion to such Purchaser) and (ii) dated the date of the Initial Closing from
Bingham Dana LLP, Purchaser's special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(a)(ii) and
covering such other matters incident to such transactions as such Purchaser may
reasonably request.
(b) Applicable Shelf Closing Day. Upon request, each Purchaser shall
have received an opinion in form and substance satisfactory to it, dated the
date of the Applicable Shelf Closing Day, from counsel for the Company and, upon
request, its own counsel, covering such other matters incident to the
transactions contemplated hereby as such Purchaser may reasonably request (and
the Company hereby instructs its counsel to deliver such opinion to such
Purchaser).
Purchase Permitted By Applicable Law, etc.
On the date of each Applicable Closing, each Purchaser's purchase of
Notes shall (a) be permitted by the laws and regulations of each jurisdiction to
which it is subject, without recourse to provisions (such as Section 1405(a)(8)
of the New York Insurance Law) permitting limited investments by insurance
companies without restriction as to the character of the particular investment,
(b) not violate any applicable law or regulation (including, without limitation,
Regulation T, U or X of the Board of Governors of the Federal Reserve System)
and (c) not subject it to any tax, penalty or liability under or pursuant to any
applicable law or regulation, which law or regulation was not in effect on the
date hereof. If so requested, each Purchaser shall have received an Officer's
Certificate certifying as to such matters of fact as it may reasonably specify
to enable such Purchaser to determine whether such purchase is so permitted.
Sale of Other Notes.
Contemporaneously with each Applicable Closing, the Company shall sell
to each Purchaser, and each such Purchaser shall purchase, the Notes to be
purchased by it at such Applicable Closing as specified in Schedule A or in the
Request for Purchase, as the case may be.
Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company shall have
paid on or before the Applicable Closing the fees, charges and disbursements of
Purchasers' special counsel referred to in Section 4.4 to the extent reflected
in a statement of such counsel rendered to the Company at least one Business Day
prior to the Applicable Closing.
Private Placement Number.
A Private Placement number issued by the CUSIP Service Bureau of
Standard & Poor's, a division of the McGraw-Hill Companies (in cooperation with
the Securities Valuation Office of the National Association of Insurance
Commissioners) shall have been obtained for the Initial Notes and each Series of
Accepted Notes.
Changes in Corporate Structure.
Except as specified in Schedule 4.9, the Company shall not have changed
its jurisdiction of incorporation or been a party to any merger or consolidation
and shall not have succeeded to all or any substantial part of the liabilities,
which are Material, of any other entity, at any time following the date of the
most recent financial statements referred to in Schedule 5.5.
Proceedings and Documents.
All corporate and other proceedings in connection with the transactions
contemplated by this Agreement and all documents and instruments incident to
such transactions shall be satisfactory to each Purchaser and its special
counsel, and each Purchaser and its special counsel shall have received all such
counterpart originals or certified or other copies of such documents as such
Purchaser or its counsel may reasonably request.
Payment of Structuring Fee.
The Company shall have paid Prudential a structuring fee of $25,000 on
the date of the Initial Closing.
Subsidiary Guaranty.
The Guarantor shall have executed and delivered to the Purchasers a
guaranty agreement (as may be amended from time to time, the "Guaranty
Agreement"), in the form of Exhibit 4.12.
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REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser that:
Organization; Power and Authority.
Each of the Company and the Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign corporation and is in good
standing in each jurisdiction in which such qualification is required by law,
other than those jurisdictions as to which the failure to be so qualified or in
good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each of the Company and the
Guarantor has the corporate power and authority to own or hold under lease the
properties it purports to own or hold under lease, to transact the business it
transacts and proposes to transact, to execute and deliver the Financing
Documents to which it is a party and to perform the provisions hereof and
thereof.
Authorization, etc.
(a) This Agreement and the Notes have been duly authorized by
all necessary corporate action on the part of the Company, and this
Agreement constitutes, and upon execution and delivery thereof each Note
will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms except as
such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(b) The Guaranty Agreement has been duly authorized by all
necessary corporate action on the part of the Guarantor, and the Guaranty
Agreement constitutes a legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its terms
except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Disclosure.
This Agreement, the Guaranty Agreement, the documents, certificates or
other writings delivered to each Purchaser by or on behalf of the Company and
the Guarantor in connection with the transactions contemplated hereby and the
financial statements listed in Schedule 5.5, taken as a whole, do not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. Since December 31, 2000, there has
been no
change in the financial condition, operations, business, properties or
prospects of the Company or any Subsidiary except changes that individually or
in the aggregate could not reasonably be expected to have a Material Adverse
Effect. There is no fact known to the Company that could reasonably be expected
to have a Material Adverse Effect.
Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) of the Company's Subsidiaries, showing, as to each
-
Subsidiary, the correct name thereof, the jurisdiction of its organization,
and the percentage of shares of each class of its capital stock or similar
equity interests outstanding owned by the Company and each other
Subsidiary, (ii) of the Company's Affiliates, other than Subsidiaries, and
--
(iii) of the Company's directors and senior officers.
---
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the
Company and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary free and
clear of any Lien (except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly qualified
as a foreign corporation or other legal entity and is in good standing in
each jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified or in
good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Subsidiary has the
corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the
business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement, the agreements
listed on Schedule 5.4 and restrictions imposed by the corporate law of the
jurisdiction under which such Subsidiary exists) restricting the ability of
such Subsidiary to pay dividends out of profits or make any other similar
distributions of profits to the Company or any of its Subsidiaries that
owns outstanding shares of capital stock or similar equity interests of
such Subsidiary.
Financial Statements.
The Company has delivered to each Purchaser copies of the financial
statements of the Company and its Subsidiaries listed on Schedule 5.5. All of
said financial statements (including in each case the related schedules and
notes) fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective dates
specified in such Schedule and the consolidated results of their operations and
cash flows for the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments).
Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Company and the Guarantor of
this Agreement, the Notes and the Guaranty Agreement, as the case may be, will
not (a) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of the Company or
any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or
credit agreement, lease, corporate charter or by-laws, or any other agreement or
instrument to which the Company or any Subsidiary is bound or by which the
Company or any Subsidiary or any of their respective properties may be bound or
affected, (b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Company or any Subsidiary
or (c) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary.
Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by the Company and the Guarantor of this
Agreement, the Notes or the Guaranty Agreement.
Litigation; Observance of Agreements, Statutes and Orders.
(a) There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary or any property of the Company or any Subsidiary in any
court or before any arbitrator of any kind or before or by any Governmental
Authority that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any
term of any agreement or instrument to which it is a party or by which it
is bound, or any order, judgment, decree or ruling of any court, arbitrator
or Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including without limitation Environmental
Laws) of any Governmental Authority, which default or violation,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
Taxes.
The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments levied
upon them or their properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (a) the amount of which is not
individually or in the aggregate Material or (b) the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that could
reasonably be expected to have a Material Adverse Effect. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
Federal, state or other taxes for all fiscal periods are adequate. The Federal
income tax liabilities of the Company and its Subsidiaries have been determined
by the Internal Revenue Service and paid for all fiscal years up to and
including the fiscal year ended December 31, 1999.
Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient title to their
respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or purported to have been acquired by the Company or
any Subsidiary after said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of Liens prohibited by
this Agreement. All leases that individually or in the aggregate are Material
are valid and subsisting and are in full force and effect in all material
respects.
Licenses, Permits, etc.
(a) The Company and its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, that individually or in the
aggregate are Material, without known conflict with the rights of others;
(b) To the best knowledge of the Company, no product of the Company
infringes in any material respect any license, permit, franchise,
authorization, patent, copyright, service mark, trademark, trade name or
other right owned by any other Person; and
(c) To the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its
Subsidiaries with respect to any patent, copyright, service mark,
trademark, trade name or other right owned or used by the Company or any of
its Subsidiaries.
Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for
such instances of noncompliance as have not resulted in and could not
reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any ERISA Affiliate has incurred any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in section 3 of ERISA), and
no event, transaction or condition has occurred or exists that could
reasonably be expected to result in the incurrence of any such liability by
the Company or any ERISA Affiliate, or in the imposition of any Lien on any
of the rights, properties or assets of the Company or any ERISA Affiliate,
in either case pursuant to Title I or IV of ERISA or to such penalty or
excise tax provisions or to section 401(a)(29) or 412 of the Code, other
than such liabilities or Liens as would not be individually or in the
aggregate Material.
(b) Neither the Company nor any ERISA Affiliate participates in,
contributes to or has any liability with respect to any pension plan
subject to Title IV of ERISA.
(c) Neither the Company nor any Subsidiary have any postretirement
benefit obligations referred to in Financial Accounting Standards Board
Statement No. 106.
(d) The execution and delivery of this Agreement and the issuance and
sale of the Notes hereunder will not involve any transaction that is
subject to the prohibitions of section 406 of ERISA or in connection with
which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the
Code. The representation by the Company in the first sentence of this
Section 5.12(d) is made in reliance upon and subject to the accuracy of
each Purchaser's representation in Section 6.2 as to the sources of the
funds used to pay the purchase price of the Notes to be purchased by such
Purchaser.
(e) Schedule 5.12 contains a complete and correct list of all ERISA
Affiliates and all Plans established or maintained by the Company and its
ERISA Affiliates.
Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has offered the Notes
or any similar securities for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect thereof with, any
Person other than the Purchasers, each of which has been offered the Notes at a
private sale for investment. Neither the Company nor anyone acting on its behalf
has taken, or will take, any action that would subject the issuance or sale of
the Notes to the registration requirements of section 5 of the Securities Act or
to the provisions of any securities or Blue Sky law of any applicable
jurisdiction.
Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the Notes as set forth
in Schedule 5.14. No part of the proceeds from the sale of the Notes hereunder
will be used, directly or indirectly, for the purpose of buying or carrying any
margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or
trading in any securities under such circumstances as to involve the Company in
a violation of Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220). The Company
does not presently own any margin stock and does not have any present intention
to acquire any margin stock in the future. As used in this Section, the terms
"margin stock" and "purpose of buying or carrying" shall have the meanings
assigned to them in said Regulation U.
Existing Debt; Future Liens.
(a) Schedule 5.15 sets forth a complete and correct list of all
outstanding Debt of the Company and its Subsidiaries as of the date of the
Initial Closing, since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities
of the Debt of the Company or its Subsidiaries.
(b) Neither the Company nor any Subsidiary is in default and no
waiver of default is currently in effect, in the payment of any principal
or interest on any Debt of the Company or such Subsidiary and no event or
condition exists with respect to any Debt of the Company or any Subsidiary
that would permit (or that with notice or the lapse of time, or both, would
permit) one or more Persons to cause such Debt to become due and payable
before its stated maturity or before its regularly scheduled dates of
payment. Neither the Company nor any Subsidiary has agreed or consented to
cause or permit in the future (upon the happening of a contingency or
otherwise) any of its property, whether now owned or hereafter acquired, to
be subject to a Lien not permitted by Section 10.4.
Foreign Assets Control Regulations, etc.
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.
Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to regulation under the
Investment Company Act of 1940, as amended, the Public Utility Holding Company
Act of 1935, as amended or the Federal Power Act, as amended.
Environmental Matters.
Neither the Company nor any Subsidiary has knowledge of any claim or has
received any notice of any claim, and no proceeding has been instituted raising
any claim against the Company or any of its Subsidiaries or any of their
respective real properties now or formerly owned, leased or operated by any of
them or other assets, alleging any damage to the environment or violation of any
Environmental Laws, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect. Except as otherwise disclosed
to each Purchaser in writing,
(a) neither the Company nor any Subsidiary has knowledge of any facts
which would give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from, occurring
on or in any way related to real properties now or formerly owned, leased
or operated by any of them or to other assets or their use, except, in each
case, such as could not reasonably be expected to result in a Material
Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored any
Hazardous Materials on real properties now or formerly owned, leased or
operated by any of them and has not disposed of any Hazardous Materials in
a manner contrary to any Environmental Laws in each case in any manner that
could reasonably be expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or
operated by the Company or any of its Subsidiaries are in compliance with
applicable Environmental Laws, except where failure to comply could not
reasonably be expected to result in a Material Adverse Effect.
REPRESENTATIONS OF THE PURCHASER.
Purchase for Investment.
Each Purchaser represents that it is purchasing the Notes for its own
account or for one or more separate accounts or investment funds maintained or
managed 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
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disposition of such Purchaser's property shall at all times be within such
Purchaser's 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.
Source of Funds.
Each Purchaser represents that at least one of the following statements is
an accurate representation as to each source of funds (a "Source") to be used by
such Purchaser to pay the purchase price of the Notes to be purchased by it
hereunder:
(a) the Source is an "insurance company general account" within the
meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-
60 (issued July 12, 1995), and there is no employee benefit plan (treating
as a single plan all plans maintained by the same employer or employee
organization) with respect to which the amount of the general account
reserves and liabilities for all contracts held by or on behalf of such
plan exceed 10% of the total reserves and liabilities of such general
account (exclusive of separate account liabilities) plus surplus, as set
forth in such Purchaser's most recent annual statement in the form required
by the National Association of Insurance Commissioners as filed with its
state of domicile; or
(b) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii)
a bank collective investment fund, within the meaning of the PTE 91-38
(issued July 12, 1991) and, except as such Purchaser has disclosed to the
Company in writing pursuant to this paragraph (b), no employee benefit plan
or group of plans maintained by the same employer or employee organization
(other than those identified on a list which has been furnished by such
Purchaser to the Company) beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment fund; or
(c) the Source constitutes assets of an "investment fund" (within the
meaning of Part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of Part V of the
QPAM Exemption), no employee benefit plan's assets that are included in
such investment fund, when combined with the assets of all other employee
benefit plans established or maintained by the same employer or by an
affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of
such employer or by the same employee organization and managed by such
QPAM, exceed 20% of the total client assets managed by such QPAM, the
conditions of Part l(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 (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment fund
have been disclosed to the Company in writing pursuant to this paragraph
(c); or
(d) the Source is a governmental plan; or
(e) 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
paragraph (e); or
(f) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in section 3 of ERISA.
INFORMATION AS TO COMPANY.
Financial and Business Information.
The Company shall deliver to each holder of Notes that is an Institutional
Investor:
(a) Quarterly Statements -- within 60 days after the end of each
--------------------
quarterly fiscal period in each fiscal year of the Company (other than the
last quarterly fiscal period of each such fiscal year), duplicate copies
of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its Subsidiaries, for such
quarter and (in the case of the second and third quarters) for the
portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly financial
statements generally, and certified by a Senior Financial Officer as fairly
presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows,
subject to changes resulting from year-end adjustments, provided that
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delivery within the time period specified above of copies of the Company's
Quarterly Report on Form 10-Q prepared in compliance with the requirements
therefor and filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 7.1(a);
(b) Annual Statements -- within 120 days after the end of each fiscal
-----------------
year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its Subsidiaries, for such
year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP,
and accompanied
(A) by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall
state that such financial statements present fairly, in all
material respects, the financial position of the companies being
reported upon and their results of operations and cash flows and
have been prepared in conformity with GAAP, and that the
examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted
auditing standards, and that such audit provides a reasonable
basis for such opinion in the circumstances, and
(B) a certificate of such accountants stating that they
have reviewed this Agreement and stating further whether, in
making their audit, they have become aware of any condition or
event that then constitutes a Default or an Event of Default,
and, if they are aware that any such condition or event then
exists, specifying the nature and period of the existence thereof
(it being understood that such accountants shall not be liable,
directly or indirectly, for any failure to obtain knowledge of
any Default or Event of Default unless such accountants should
have obtained knowledge thereof in making an audit in accordance
with generally accepted auditing standards or did not make such
an audit),
provided that the delivery within the time period specified above of the
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Company's Annual Report on Form 10-K for such fiscal year (together with
the Company's annual report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Securities and Exchange
Commission, together with the accountant's certificate described in clause
(B) above, shall be deemed to satisfy the requirements of this Section
7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming available,
---------------------
one copy of (i) each financial statement, report, notice or proxy statement
sent by the Company or any Subsidiary to public securities holders
generally, and (ii) each regular or periodic report, each registration
statement (without exhibits except as expressly requested by such holder),
and each prospectus and all amendments thereto filed by the Company or any
Subsidiary with the Securities and Exchange Commission and of all
press releases and other statements made available generally by the Company
or any Subsidiary to the public concerning developments that are Material;
(d) Notice of Default or Event of Default -- promptly, and in any
-------------------------------------
event within five days after a Responsible Officer becoming aware of the
existence of any Default or Event of Default or that any Person has given
any notice or taken any action with respect to a claimed default hereunder
or that any Person has given any notice or taken any action with respect to
a claimed default of the type referred to in Section 11(f), a written
notice specifying the nature and period of existence thereof and what
action the Company is taking or proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days
-------------
after a Responsible Officer becoming aware of any of the following, a
written notice setting forth the nature thereof and the action, if any,
that the Company or an ERISA Affiliate proposes to take with respect
thereto:
(i) with respect to any Plan, any reportable event, as defined
in section 4043(b) of ERISA and the regulations thereunder, for which
notice thereof has not been waived pursuant to such regulations as in
effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Company or any
ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could result in
the incurrence of any liability by the Company or any ERISA Affiliate
pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, or in the
imposition of any Lien on any of the rights, properties or assets of
the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA
or such penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then existing,
could reasonably be expected to have a Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in any event
-----------------------------------
within 30 days of receipt thereof, copies of any notice to the Company or
any Subsidiary from any Federal or state Governmental Authority relating to
any order, ruling, statute or other law or regulation that could reasonably
be expected to have a Material Adverse Effect; and
(g) Requested Information -- with reasonable promptness, such other
---------------------
data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of the Company to perform its
obligations hereunder and under the Notes, or the ability of the
Guarantor to perform its obligations under the Guaranty Agreement, as from
time to time may be reasonably requested by any such holder of Notes.
Officer's Certificate
Each set of financial statements delivered to a holder of Notes pursuant to
Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by a certificate of
a Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including detailed
-------------------
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 10.1 through Section 10.5
hereof, inclusive, and Section 10.7 during the quarterly or annual period
covered by the statements then being furnished (including with respect to
each such Section, where applicable, the calculations of the maximum or
minimum amount, ratio or percentage, as the case may be, permissible under
the terms of such Sections, and the calculation of the amount, ratio or
percentage then in existence); and
(b) Event of Default -- a statement that such officer has reviewed
----------------
the relevant terms hereof and has made, or caused to be made, under his or
her supervision, a review of the transactions and conditions of the Company
and its Subsidiaries from the beginning of the quarterly or annual period
covered by the statements then being furnished to the date of the
certificate and that such review shall not have disclosed the existence
during such period of any condition or event that constitutes a Default or
an Event of Default or, if any such condition or event existed or exists
(including, without limitation, any such event or condition resulting from
the failure of the Company or any Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence thereof
and what action the Company shall have taken or proposes to take with
respect thereto.
Inspection.
The Company shall permit the representatives of each holder of Notes that
is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at
----------
the expense of such holder and upon reasonable prior notice to the Company,
to visit the principal executive office of the Company, to discuss the
affairs, finances and accounts of the Company and its Subsidiaries with the
Company's officers, and (with the consent of the Company, which consent
will not be unreasonably withheld) its independent public accountants, and
(with the consent of the Company, which consent will not be unreasonably
withheld) to visit the other offices and properties of the Company and each
Subsidiary, all at such reasonable times and as often as may be reasonably
requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the
-------
expense of the Company to visit and inspect any of the offices or
properties of the Company or any
Subsidiary, to examine all their respective books of account, records,
reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their
respective officers and independent public accountants (and by this
provision the Company authorizes said accountants to discuss the affairs,
finances and accounts of the Company and its Subsidiaries), all at such
times and as often as may be requested.
PREPAYMENT OF THE NOTES.
Required Prepayments.
(a) Initial Notes. On February 10, 2004 and August 10, 2004 and on
each February 10 and August 10 thereafter to and including February 10,
2008, the Company will prepay $5,000,000 principal amount (or such lesser
principal amount as shall then be outstanding) of the Initial Notes at par
and without payment of the Yield-Maintenance Amount or any premium,
provided that (i) upon any partial prepayment of the Initial Notes pursuant
--------
to Section 8.2, such partial prepayment shall be deemed to be applied
first, to the amount of principal scheduled to remain unpaid on the Initial
Notes on August 10, 2008, and then to the remaining scheduled principal
payments in inverse chronological order; and (ii) upon any partial
prepayment of the Initial Notes pursuant to Section 8.3, the principal
amount of each required prepayment of the Initial Notes becoming due under
this Section 8.1 on and after the date of such prepayment or purchase shall
be reduced in the same proportion as the aggregate unpaid principal amount
of the Initial Notes is reduced as a result of such prepayment or purchase.
Subject to Section 12.1, any remaining principal of, and the interest then
accrued and unpaid on, the Initial Notes shall be due and payable on August
10, 2008.
(b) Shelf Notes. The Shelf Notes of each Series shall be subject to
required prepayments, if any, set forth in the Shelf Notes of each Series.
Optional Prepayments with Yield-Maintenance Amount.
The Company may, at its option, upon notice as provided below, prepay on
any Interest Payment Date, or from time to time any part of, the Notes, in an
amount not less than $5,000,000 (in integral multiples of $100,000) of the
aggregate principal amount of the Notes then outstanding in the case of a
partial prepayment, at 100% of the principal amount so prepaid, plus the Yield-
Maintenance Amount determined for the prepayment date with respect to such
principal amount. The Company will give each holder of Notes written notice of
each optional prepayment under this Section 8.2 not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment. Each such notice
shall specify such date, the aggregate principal amount of the Notes to be
prepaid on such date, the principal amount of each Note held by such holder to
be prepaid (determined in accordance with Section 8.4), and the interest to be
paid on the prepayment date with respect to such principal amount being prepaid,
and shall be accompanied by a certificate of a Senior Financial Officer as to
the estimated Yield-Maintenance Amount due in connection with such prepayment
(calculated as if the date of such notice were the date of the prepayment),
setting forth the details of such computation. Two Business Days prior to such
prepayment, the Company shall deliver to each holder of Notes a certificate of a
Senior Financial Officer specifying the calculation of such Yield-Maintenance
Amount as of the specified prepayment date.
Prepayment of Notes Upon Change in Control.
(a) Notice of Change in Control or Notice Event. The Company will,
within five Business Days after any Responsible Officer has knowledge of
the occurrence of any Change in Control or Notice Event, give written
notice of such Change in Control or Notice Event to each holder of Notes.
In the case that a Change in Control has occurred, such notice shall
contain and constitute an offer to prepay Notes as described in
subparagraph (b) of this Section 8.3 and shall be accompanied by the
certificate described in subparagraph (e) of this Section 8.3.
(b) Offer to Prepay Notes. The offer to prepay Notes contemplated by
subparagraph (a) of this Section 8.3 shall be an offer to prepay, in
accordance with and subject to this Section 8.3, all, but not less than
all, of the Notes held by each holder (in this case only, "holder" in
respect of any Note registered in the name of a nominee for a disclosed
beneficial owner shall mean such beneficial owner) on a date specified in
such offer (the "Proposed Prepayment Date") that is not less than 45 days
and not more than 60 days after the date of such offer (if the Proposed
Prepayment Date shall not be specified in such offer, the Proposed
Prepayment Date shall be the 45th day after the date of such offer).
(c) Acceptance. A holder of Notes may accept the offer to prepay made
pursuant to this Section 8.3 by causing a notice of such acceptance to be
delivered to the Company in accordance with this subparagraph (c). If the
Company shall not have received a written response to the offer to prepay
pursuant to this Section 8.3 from each holder of Notes within 20 Business
Days after the date of making such offer to such holder of Notes, then the
Company shall immediately send a second written notice of such offer to
prepay via an overnight air courier of national reputation to each such
holder of Notes who shall have not previously responded to the Company. If
the offer is so accepted by any holder of Notes, the Company at least 15
days prior to the Proposed Prepayment Date shall give written notice to
each holder of Notes that has not so accepted the offer, in which notice
the Company shall (i) state the aggregate outstanding principal amount of
Notes in respect of which the offer has been accepted and (ii) state that
any holder of Notes may yet accept the offer, whether theretofore rejected
or not, by causing a notice of such acceptance to be delivered to the
Company at least five days prior to the Proposed Prepayment Date. A failure
by a holder of Notes to respond to an offer to prepay made pursuant to this
Section 8.3 shall be deemed to constitute an acceptance of such offer by
such holder.
(d) Prepayment. Prepayment of the Notes to be prepaid pursuant to
this Section 8.3 shall be at 100% of the principal amount of such Notes,
plus the Yield-Maintenance Amount determined for the date of prepayment
with respect to such principal amount, together with interest on such Notes
accrued to the date of prepayment. Two Business Days prior to the date of
prepayment, the Company shall deliver to each holder of Notes being prepaid
a certificate of a Senior Financial Officer showing the Yield-Maintenance
Amount due in connection with such prepayment and setting forth the details
of the
computation of such amount. The prepayment shall be made on the Proposed
Prepayment Date.
(e) Officer's Certificate. Each offer to prepay the Notes pursuant to
this Section 8.3 shall be accompanied by a certificate, executed by a
Senior Financial Officer of the Company and dated the date of such offer,
specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made
pursuant to this Section 8.3; (iii) the principal amount of each Note
offered to be prepaid; (iv) the estimated Yield-Maintenance Amount, if any,
due in connection with such prepayment (calculated as if the date of such
notice were the date of the prepayment), setting forth the details of such
computation; (v) the interest that would be due on each Note offered to be
prepaid, accrued to the Proposed Prepayment Date; (vi) that the conditions
of this Section 8.3 have been fulfilled; and (vii) in reasonable detail,
the nature and date of the Change in Control.
(f) "Change in Control" and "Current Management" Defined. "Change
in Control" shall mean any event or circumstance resulting in any Person or
group of Persons acting in concert, other than a group of Persons
including, and under the general direction of, Current Management, legally
or beneficially owning or controlling, directly or indirectly, more than
50% (by number of votes) of the voting stock of the Company. "Current
Management" shall mean and include Earl E. Congdon, John R. Congdon, and
David S. Congdon.
(g) "Notice Event" Defined. "Notice Event" means: (i) the execution
by the Company or any of its Subsidiaries or Affiliates of any agreement or
letter of intent with respect to any proposed transaction or event or
series of transactions or events which, individually or in the aggregate,
may reasonably be expected to result in a Change in Control, or (ii) the
execution of any written agreement which, when fully performed by the
parties thereto, would result in a Change in Control.
Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes pursuant to Section
8.1, the principal amount of the Notes of the Series to which the prepayment
applies shall be allocated among all of such Notes that are outstanding in
proportion, as nearly as practicable, to the respective amounts thereof not
theretofore called for prepayment. In the case of each partial optional
prepayment pursuant to Section 8.2, the principal amount of the Notes to be
prepaid shall be allocated among all the Notes that are outstanding (regardless
of Series) in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment.
Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Yield-Maintenance
Amount, if any. From and after such date, unless the Company shall fail to pay
such principal amount when so due and payable, together with the interest and
Yield-Maintenance Amount, if any, as aforesaid, interest on such principal
amount shall cease to accrue. Any Note paid or prepaid in full shall be
surrendered to the Company and cancelled and shall not be reissued, and no Note
shall be issued in lieu of any prepaid principal amount of any Note.
Purchase of Notes.
The Company will not and will not permit any Affiliate to purchase, redeem,
prepay or otherwise acquire, directly or indirectly, any of the outstanding
Notes except upon the payment or prepayment of the Notes in accordance with the
terms of this Agreement and the Notes. The Company will promptly cancel all
Notes acquired by it or any Affiliate pursuant to any payment, prepayment or
purchase of Notes pursuant to any provision of this Agreement and no Notes may
be issued in substitution or exchange for any such Notes.
Yield-Maintenance Amount.
The term "Yield-Maintenance Amount" means, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal, provided that the Yield-Maintenance Amount may
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in no event be less than zero. For the purposes of determining the Yield-
Maintenance Amount, the following terms have the following meanings:
"Called Principal" means, with respect to any Note, the principal of
such Note that is to be prepaid pursuant to Section 8.2 or Section 8.3 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"Discounted Value" means, 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
(converted to reflect the periodic basis on which interest on the Notes is
payable, if payable on other than a semi-annual basis) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of
any Note, .5% per annum over the yield to maturity implied by (a) the
yields reported, as of 10:00 A.M. (New York City time) on the second
Business Day preceding the Settlement Date with respect to such Called
Principal on the display designated as "Page 678" on the Bridge Telerate
Service (or such other display as may replace Page 678 on the Bridge
Telerate Service) for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal as of
such Settlement Date, or (b) if such yields are not reported as of such
time or the yields reported as of such time are not ascertainable, the
Treasury Constant Maturity Series Yields reported, for the latest day for
which such yields have been so reported as of the second Business Day
preceding the Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a constant
maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (i) converting U.S. Treasury bill quotations
to bond-equivalent yields in accordance with accepted financial practice
and (ii) interpolating linearly between (x) the actively traded U.S.
Treasury security with the duration closest to and greater than the
Remaining Average Life and (y) the actively traded U.S. Treasury security
with the duration closest to and less than the Remaining Average Life. The
Reinvestment Yield will be rounded to that number of decimal places as
appears in the interest rate of the applicable Note.
"Remaining Average Life" means, with respect to any Called Principal,
the number of years (calculated to the nearest one-twelfth year) obtained
by dividing (a) such Called Principal into (b) the sum of the products
obtained by multiplying (i) the principal component of each Remaining
Scheduled Payment with respect to such Called Principal by (ii) the number
of years (calculated to the nearest one-twelfth year) that 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" means, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due 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, provided that if such Settlement Date is not a date
on which interest payments are due to be made under the terms of the Notes,
then the amount of the next succeeding scheduled interest payment will be
reduced by the amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to Section 8.2,
Section 8.3 or 12.1.
"Settlement Date" means, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid pursuant to
Section 8.2 or Section 8.3 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Compliance with Law.
The Company will and will cause each of its Subsidiaries to comply with all
laws, ordinances or governmental rules or regulations to which each of them is
subject, including, without limitation, ERISA and Environmental Laws, and will
obtain and maintain in effect all licenses, certificates, permits, franchises
and other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses, in each
case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Insurance.
The Company will and will cause each of its Subsidiaries to maintain, with
financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles, co-
insurance and self-insurance, if adequate reserves are maintained with respect
thereto) as is customary in the case of entities of established reputations
engaged in the same or a similar business and similarly situated.
Maintenance of Properties.
The Company will and will cause each of its Subsidiaries to maintain and
keep, or cause to be maintained and kept, their respective properties in good
repair, working order and condition (other than ordinary wear and tear), so that
the business carried on in connection therewith may be properly conducted at all
times, provided that this Section shall not prevent the Company or any
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Subsidiary from discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of its business
and the Company has concluded that such discontinuance could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Payment of Taxes and Claims.
The Company will and will cause each of its Subsidiaries to file all tax
returns required to be filed in any jurisdiction and to pay and discharge all
taxes shown to be due and payable on such returns and all other taxes,
assessments, governmental charges, or levies imposed on them or any of their
properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent
and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of the Company or any Subsidiary, provided
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that neither the Company nor any Subsidiary need pay any such tax or assessment
or claims if (i) the amount, applicability or validity thereof is contested by
-
the Company or such Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (ii) the nonpayment of all such taxes and assessments in
--
the aggregate could not reasonably be expected to have a Material Adverse
Effect.
Corporate Existence, etc.
Subject to Sections 10.6 and 10.7, the Company will at all times preserve
and keep in full force and effect its corporate existence and the corporate
existence of each of its Subsidiaries (unless merged into the Company or a
Subsidiary) and all rights and franchises of the Company and its Subsidiaries
unless, in the good faith judgment of the Company, the termination of or failure
to preserve and keep in full force and effect such corporate existence, right or
franchise could not, individually or in the aggregate, have a Material Adverse
Effect.
Waiver Agreements.
The Company shall, on or before May 14, 2001, have entered into (i) a Bank
Waiver Agreement among the Company and the Bank (the "Bank Waiver") waiving the
Company's obligations to comply with Section 8.3 of that certain Credit
Agreement with respect to the issuance of the Notes hereunder, dated as of May
31, 2000 among the Company and the Bank, and (ii) a Noteholder Waiver Agreement
among the Company and the 1998 Holders (the "Noteholder Waiver", and, together
with the Bank Waiver, the "Waivers"), waiving the Company's obligations to
comply with Section 10.3(b) of that certain Note Purchase Agreement dated as of
February 25, 1998 among the Company and the 1998 Holders with respect to the
issuance of guaranties by the Guarantor in respect of the notes and the
indebtedness outstanding under the Credit Agreement, and shall have delivered to
each Purchaser copies of the fully executed Waiver Agreements. NEGATIVE
COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Consolidated Tangible Net Worth.
The Company will not, at any time, permit Consolidated Tangible Net Worth
to be less than the sum of (a) $98,897,000 plus (b) an aggregate amount equal to
50% of its Consolidated Net Income (but, in each case, only if a positive
number) for each completed fiscal quarter beginning with the fiscal quarter
ended March 31, 2001.
Fixed Charges Coverage Ratio.
The Company will not, at any time, permit the Fixed Charges Coverage Ratio
to be less than 1.75 to 1.00.
Limitations On Debt.
(a) The Company will not at any time permit Consolidated Funded Debt to
exceed 55% of Consolidated Total Capitalization as of the then most recently
ended fiscal quarter of the Company.
(b) The Company will not at any time permit Funded Debt of Subsidiaries to
exceed the remainder of (i) 15% of Consolidated Tangible Net Worth minus (ii)
the aggregate amount of Debt of the Company and its Subsidiaries then
outstanding secured by Liens permitted by Section 10.4(k).
Liens.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly create, incur, assume or permit to exist (upon the
happening of a contingency or otherwise) any Lien on or with respect to any
property or asset (including, without limitation, any document or instrument in
respect of goods or accounts receivable) of the Company or any such Subsidiary,
whether now owned or held or hereafter acquired, or any income or profits
therefrom or assign or otherwise convey any right to receive income or profits
(unless it (i)
makes, or causes to be made, effective provision whereby the Notes will be
equally and ratably secured with any and all other obligations thereby secured,
such security to be pursuant to an agreement reasonably satisfactory to the
Required Holders and, in any such case, the Notes shall have the benefit, to the
fullest extent that, and with such priority as, the holders of the Notes may be
entitled under applicable law, of an equitable Lien on such property and (ii)
delivers to each holder of the Notes an opinion of counsel, in form and
substance satisfactory to the Required Holders, to the effect that such
agreement constitutes a valid and perfected Lien on and security interest in
such security and that the Notes are equally and ratably secured with any and
all other obligations thereby secured), except:
(a) Liens for taxes, assessments or other governmental charges which
are not yet due and payable or the payment of which is not at the time
required by Section 9.4;
(b) Liens created by or resulting from any judgment or award which
are being actively contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in accordance
with GAAP;
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other similar Liens, in each case, incurred in
the ordinary course of business for sums not yet due and payable or the
payment of which is not at the time required by Section 9.4;
(d) leases or subleases granted to others, easements, rights-of-way,
restrictions and other similar charges or encumbrances, in each case
incidental to, and not interfering with, the ordinary conduct of the
business of the Company or any of its Subsidiaries, provided that such
Liens do not, in the aggregate, materially detract from the value of such
property;
(e) other Liens incidental to the normal conduct of the business of
the Company or any Subsidiary or the ownership of its property and assets
which are not incurred in connection with the borrowing of money and which
do not in the aggregate materially impair the use of such property and
assets in the operation of the business of the Company or any Subsidiary or
materially impair the value of such property and assets for the purposes of
such business;
(f) Liens on property or assets of the Company or any of its
Subsidiaries securing Debt owing to the Company or to any of its Wholly-
Owned Subsidiaries;
(g) Liens existing on the date of this Agreement and reflected on
Schedule 10.4;
(h) any Lien renewing, extending or refunding any Lien permitted by
paragraph (g) or paragraph (i) of this Section 10.4, provided that (i) the
principal amount of Debt secured by such Lien immediately prior to such
extension, renewal or refunding is not increased or the maturity thereof
reduced, (ii) such Lien is not extended to any other property, and (iii)
immediately after such extension, renewal or refunding no Default or Event
of Default would exist;
(i) any Lien created to secure all or any part of the purchase
price, or to secure Debt incurred or assumed to pay all or any part of
the purchase price or cost of construction, of real or tangible
personal property (or any improvement thereon or thereto) acquired or
constructed by the Company or a Subsidiary after the date of the
Closing, provided that (1) any such Lien shall extend solely to the
item or items of such property (or improvement thereon) so acquired or
constructed and, if required by the terms of the instrument originally
creating such Lien, other property (or improvement thereon) which is an
improvement to or is acquired for specific use in connection with such
acquired or constructed property (or improvement thereon) or which is
real property being improved by such acquired or constructed property
(or improvement thereon), (2) the principal amount of the Debt secured
by any such Lien shall at no time exceed an amount equal to the Fair
Market Value (as determined in good faith by the board of directors of
the Company) of such property (or improvement thereon) at the time of
such acquisition or construction, and (3) any such Lien shall be
created contemporaneously with, or within 120 days after, the
acquisition or completion of construction of such property;
(j) any Lien existing on property of a Person immediately
prior to its being consolidated with or merged into the Company or a
Subsidiary or its becoming a Subsidiary, or any Lien existing on any
property acquired by the Company or any Subsidiary at the time such
property is so acquired (whether or not the Debt secured thereby shall
have been assumed), provided that (1) no such Lien shall have been
created or assumed in contemplation of such consolidation or merger or
such Person's becoming a Subsidiary or such acquisition of property,
(2) each such Lien shall extend solely to the item or items of property
so acquired and, if required by the terms of the instrument originally
creating such Lien, other property which is an improvement to or is
acquired for specific use in connection with such acquired property and
(3) the principal amount of the Debt secured by any such Lien shall at
no time exceed an amount equal to the Fair Market Value (as determined
in good faith by the board of directors of the Company) of such
property (or such improvement thereon) at the time of such acquisition;
and
(k) other Liens not otherwise permitted by paragraphs (a)
through (j) securing Debt of the Company or any Subsidiary, provided
that all Debt secured by such Liens does not at any time exceed the
remainder of (1) 15% of Consolidated Tangible Net Worth minus (2) the
aggregate amount of Funded Debt of Subsidiaries then outstanding.
Restricted Payments And Restricted Investments.
(a) Limitation. The Company will not, and will not permit any
of its Subsidiaries to, declare, make or incur any liability to make
any Restricted Payment or make or authorize any Restricted Investment
unless immediately after giving effect to such action:
(i) the sum of (x) the aggregate value of all
Restricted Investments of the Company and its Subsidiaries
(valued immediately after such action), plus (y) the aggregate
amount of Restricted Payments of the Company and its
Subsidiaries declared or made during the period commencing on
March 31, 1996 and ending
on the date such Restricted Payment or Restricted Investment
is declared or made, inclusive, would not exceed the sum of
(A) $5,000,000, plus
(B) 50% of Consolidated Net Income for the
period from March 31, 1996 through such date (or
minus 100% of Consolidated Net Income for such period
if Consolidated Net Income for such period is a
loss), plus
(C) the aggregate amount of Net Proceeds of
Capital Stock for such period; and
(ii) no Default or Event of Default would exist.
(b) Time Of Payment. The Company will not, nor will it permit
any of its Subsidiaries to, authorize a Restricted Payment that is not
payable within 60 days of authorization.
Merger, Consolidation, Etc.
The Company will not, and will not permit any of its Subsidiaries to,
consolidate with or merge with any other Person or convey, transfer or lease
substantially all of its assets in a single transaction or series of
transactions to any Person (except that (x) a Subsidiary of the Company may
consolidate with or merge with, or convey, transfer or lease substantially all
of its assets in a single transaction or series of transactions to, the Company
or another Wholly-Owned Subsidiary of the Company and (y) each of the Company
and its Subsidiaries may convey, transfer or lease all of its assets in
compliance with the provisions of Section 10.7 hereof so long as, in the case of
the Guarantor, any such Wholly-Owned Subsidiary or any such transferee of the
Guarantor's assets executes a guaranty of the Notes and the Company's other
obligations hereunder in the form of the Guaranty Agreement), provided that the
foregoing restriction does not apply to the consolidation or merger of the
Company with, or the conveyance, transfer or lease of substantially all of the
assets of the Company in a single transaction or series of transactions to, any
Person so long as:
(a) the successor formed by such consolidation or
the survivor of such merger or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety, as the case may be (the "Successor Corporation"), shall be a
solvent corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia;
(b) if the Company is not the Successor Corporation,
such corporation shall have executed and delivered to each holder of
Notes its assumption of the due and punctual performance and observance
of each covenant and condition of this Agreement and the Notes
(pursuant to such agreements and instruments as shall be reasonably
satisfactory to the Required Holders), and the Company shall have
caused to be delivered to each holder of Notes an opinion of nationally
recognized independent counsel, or other independent counsel reasonably
satisfactory to the Required Holders, to the effect that all
agreements or instruments effecting such assumption are enforceable in
accordance with their terms and comply with the terms hereof; and
(c) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing or would have occurred if such transaction had been
consummated immediately prior to the end of the most recently completed
fiscal quarter of the Company. No such conveyance, transfer or lease of
substantially all of the assets of the Company shall have the effect of
releasing the Company or any Successor Corporation from its liability
under this Agreement or the Notes.
Sale Of Assets, Etc.
Except as permitted under Section 10.6, the Company will not, and will
not permit any of its Subsidiaries to, make any Asset Disposition unless:
(a) in the good faith opinion of the Company, the Asset
Disposition is in exchange for consideration having a Fair Market Value at least
equal to that of the property exchanged and is in the best interest of the
Company or such Subsidiary; and
(b) immediately after giving effect to the Asset Disposition,
no Default or Event of Default would exist or would have occurred if such
transaction had been consummated immediately prior to the end of the most
recently completed fiscal quarter of the Company; and
(c) immediately after giving effect to the Asset Disposition,
(i) the Disposition Value of all property that was the subject of any Asset
Disposition occurring in the period of four fiscal quarters of the Company then
next ending would not exceed 15% of Consolidated Assets as of the end of the
then most recently ended fiscal quarter of the Company and (ii) all of the
property of the Company and its Subsidiaries that was the subject of any Asset
Disposition occurring in the period of four fiscal quarters of the Company then
next ending did not account for more than 15% of Consolidated Net Income for the
then most recently ended four quarter fiscal period.
If the Net Proceeds Amount for any Transfer is applied to a
Reinvestment Application within 270 days after such Transfer, then such
Transfer, only for the purpose of determining compliance with subsection (c) of
this Section 10.7 as of a date on or after the Net Proceeds Amount is so
applied, shall be deemed not to be an Asset Disposition.
Sale-And-Leasebacks.
The Company will not, and will not permit any Subsidiary to, enter into
any Sale-and-Leaseback Transaction unless the Net Proceeds Amount received by
the Company or such Subsidiary in respect of such Sale-and-Leaseback Transaction
is applied within 270 days of the consummation thereof to a Reinvestment
Application.
Transactions With Affiliates.
The Company will not and will not permit any Subsidiary to enter into
directly or indirectly any transaction or Material group of related transactions
(including without limitation the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except in the ordinary course
and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
Line Of Business.
The Company will not, and will not permit any of its Subsidiaries to,
engage in any business if, as a result, the general nature of the business in
which the Company and its Subsidiaries, taken as a whole, would then be engaged
would be substantially changed from the general nature of the business in which
the Company and its Subsidiaries, taken as a whole, are engaged on the date of
this Agreement.
EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Yield-Maintenance Amount, if any, on any Note when the same becomes due
and payable, whether at maturity or at a date fixed for prepayment or
by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) the Company or the Guarantor defaults in the performance
of or compliance with any term contained in Section 7.1 or Section 10;
or
(d) the Company or the Guarantor defaults in the performance
or observation of or compliance with any term contained herein (other
than those referred to in paragraphs (a), (b) and (c) of this Section
11) and such default is not remedied within 20 days after the earlier
of (i) a Responsible Officer obtaining actual knowledge of such default
and (ii) the Company receiving written notice of such default from any
holder of a Note (any such written notice to be identified as a "notice
of default" and to refer specifically to this paragraph (d) of Section
11); or
(e) any representation or warranty made in writing by or on
behalf of the Company or any Subsidiary or by any officer of the
Company in this Agreement or in any writing furnished in connection
with the transactions contemplated hereby proves to have been false or
incorrect in any material respect on the date as of which made; or
(f) the Company or any Subsidiary is in default in the
performance of or compliance with any term of any evidence of any Debt
including, without limitation,
payment terms in an aggregate outstanding principal amount of at least
$100,000 or of any mortgage, indenture or other agreement relating
thereto; or
(g) the Company or any Subsidiary (i) is generally not paying,
or admits in writing its inability to pay, its debts as they become
due, (ii) files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganization or arrangement
or any other petition in bankruptcy, for liquidation or to take
advantage of any bankruptcy, insolvency, reorganization, moratorium or
other similar law of any jurisdiction, (iii) makes an assignment for
the benefit of its creditors, (iv) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of its property,
(v) is adjudicated as insolvent or to be liquidated, or (vi) takes
corporate action for the purpose of any of the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the Company
or any of its Subsidiaries, a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief
or approving a petition for relief or reorganization or any other
petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company or any of its
Subsidiaries, or any such petition shall be filed against the Company
or any of its Subsidiaries and such petition shall not be dismissed
within 60 days; or
(i) a notice of lien, levy or assessment is filed of record to
all or any of the Company's or any Subsidiary's assets by the United
States, or any department, agency or instrumentality thereof, or by any
state, county, municipal or other governmental agency, including,
without limitation, the PBGC, or if any taxes or debts owing at any
time or times hereafter to any one of them becomes a lien or
encumbrance upon the Company's or any Subsidiary's property and the
same is not dismissed, released, bonded or discharged within thirty
(30) days after the same becomes a lien or encumbrance or, in the case
of ad valorem taxes, prior to the last day when payment may be made
without penalty; or
(j) a judgment or judgments rendered against one or more of
the Company and its Subsidiaries or the issuance of a warrant of
attachment, execution or similar process against the Company or any of
its property in excess of $500,000 that are not, within 30 days after
entry thereof, bonded, discharged, released, dismissed or stayed
pending appeal, or are not discharged within 30 days after the
expiration of such stay; or
(k) the occurrence of any of the following events: (i) the
happening of a Reportable Event with respect to any profit sharing or
pension plan of the Company governed by ERISA; (ii) the appointment of
a trustee by an appropriate United States District Court to administer
any such plan; (iii) the institution of any proceedings by the PBGC to
terminate any such plan or to appoint a trustee to administer any such
plan; (iv) the failure of the Company to furnish to the Required
Holders a copy of each report which is filed by the Company with
respect to each such plan promptly after the filing thereof with the
Secretary of Labor or the PBGC; or (v) the failure of the Company to
notify the Required Holders promptly upon receipt by the Company of any
notice of the
institution of any proceeding or any other actions which may result in
the termination of any such plan; or
(l) the Company ceases to be solvent, or the Company ceases to
conduct its business substantially as now conducted or is enjoined,
restrained or in any way prevented by court order from conducting all
or any material part of its business affairs; or
(m) the Guarantor fails or neglects to observe, perform or
comply with any term, provision, condition, covenant, warranty or
representation contained in the Guaranty Agreement.
REMEDIES ON DEFAULT, ETC.
Acceleration.
(a) If an Event of Default with respect to the Company
described in paragraph (g) or (h) of Section 11 (other than an Event of
Default described in clause (i) of paragraph (g) or described in clause
(vi) of paragraph (g) by virtue of the fact that such clause
encompasses clause (i) of paragraph (g)) has occurred, all the Notes
then outstanding shall automatically become immediately due and payable
and the Facility shall automatically be terminated.
(b) If any other Event of Default has occurred and is
continuing, the Required Holders may at any time by notice or notices
to the Company, declare all the Notes then outstanding to be
immediately due and payable and terminate the Facility.
(c) If any Event of Default described in paragraph (a) or (b)
of Section 11 has occurred and is continuing, any holder or holders of
Notes at the time outstanding affected by such Event of Default may at
any time, at its or their option, by notice or notices to the Company,
declare all the Notes held by it or them to be immediately due and
payable.
Upon any Notes becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Notes will forthwith mature and
the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Yield-Maintenance Amount determined in
respect of such principal amount, shall all be immediately due and payable, in
each and every case without presentment, demand, protest or further notice, all
of which are hereby waived. 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 a 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.
Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in aid
of the exercise of any power granted hereby or thereby or by law or otherwise.
Rescission.
At any time after any Notes have been declared due and payable pursuant
to clause (b) or (c) of Section 12.1, the Required Holders, by written notice to
the Company, may rescind and annul any such declaration and its consequences if
(a) the Company has paid all overdue interest on the Notes, all principal of and
Yield-Maintenance Amount, if any, on any Notes that are due and payable and are
unpaid other than by reason of such declaration, together with interest on the
outstanding principal amount of the Notes and on any such unpaid
Yield-Maintenance Amount and (to the extent permitted by law) unpaid interest at
the Default Rate, (b) all Events of Default and Defaults, other than non-payment
of amounts that have become due solely by reason of such declaration, have been
cured or have been waived pursuant to Section 17, and (c) no judgment or decree
has been entered for the payment of any monies due pursuant hereto or to the
Notes. No rescission and annulment under this Section 12.3 will extend to or
affect any subsequent Event of Default or Default or impair any right consequent
thereon.
No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any Note
in exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15, the Company
will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
Registration of Notes
The Company shall keep at its principal executive office a register for
the registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. 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.
Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a surrender
for registration of transfer, duly endorsed or accompanied by a written
instrument of transfer duly executed by the registered holder of such Note or
his attorney duly authorized in writing and accompanied by the address for
notices of each transferee of such Note or part thereof), the Company shall
execute and deliver, at the Company's expense (except as provided below), one or
more new Notes (as requested by the holder thereof) in exchange therefor, in an
aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such
holder may request and shall be substantially in the form of Exhibit 1.1 or 1.2,
as the case may be. Each such new Note shall be dated and bear interest from the
date to which interest shall have been paid on the surrendered Note or dated the
date of the surrendered Note if no interest shall have been paid thereon. The
Company may require payment of a sum sufficient to cover any stamp tax or
governmental charge imposed in respect of any such transfer of Notes. Notes
shall not be transferred in denominations of less than $100,000, provided that
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if necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than $100,000. Any
transferee, by its acceptance of a Note registered in its name (or the name of
its nominee), shall be deemed to have made the representation set forth in
Section 6.2.
The holder of any Note may also 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.
Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
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is, or is a nominee for, an original Purchaser or another holder of a
Note with a minimum net worth of at least $100,000,000, such Person's
own unsecured agreement of indemnity shall be deemed to be
satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,the Company at its own expense shall execute and deliver, in
lieu thereof, a new Note, dated and bearing interest from the date to
which interest shall have been paid on such lost, stolen, destroyed or
mutilated Note or dated the date of such lost, stolen, destroyed or
mutilated Note if no interest shall have been paid thereon.
PAYMENTS ON NOTES.
Place of Payment.
Subject to Section 14.2, payments of principal, Yield-Maintenance
Amount, if any, and interest becoming due and payable on the Notes shall be made
in High Point, North Carolina at the principal office of the Company in such
jurisdiction. The Company may at any time, by notice to each holder of a Note,
change the place of payment of the Notes so long as such place of payment shall
be either the principal office of the Company in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction or in New York,
New York.
Home Office Payment.
So long as each Purchaser or its nominee shall be the holder of any
Note, and notwithstanding anything contained in Section 14.1 or in such Note to
the contrary, the Company will pay all sums becoming due on such Note for
principal, Yield-Maintenance Amount, if any, and interest by the method and at
the address specified for such purpose below each Purchaser's name in Schedule
A, or by such other method or at such other address as it shall have from time
to time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, each
Purchaser shall surrender such Note for cancellation, reasonably promptly after
any such request, to the Company at its principal executive office or at the
place of payment most recently designated by the Company pursuant to Section
14.1. Prior to any sale or other disposition of any Note held by each Purchaser
or its nominee it will, at its election, either endorse thereon the amount of
principal paid thereon and the last date to which interest has been paid thereon
or surrender such Note to the Company in exchange for a new Note or Notes
pursuant to Section 13.2. The Company will afford the benefits of this Section
14.2 to any Institutional Investor that is the direct or indirect transferee of
any Note purchased by each Purchaser under this Agreement and that has made the
same agreement relating to such Note as each Purchaser has made in this Section
14.2.
EXPENSES, ETC.
Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated,
the Company will pay all costs and expenses (including reasonable attorneys'
fees of a special counsel and, if reasonably required, local or other counsel)
incurred by each Purchaser or holder of a Note in connection with such
transactions and in connection with any amendments, waivers or consents under or
in respect of this Agreement or the Notes (whether or not such amendment, waiver
or consent becomes effective), including, without limitation: (a) any fees and
costs incurred by or on behalf of any Purchaser associated with the unwinding of
positions executed by or on behalf of such Purchaser in contemplation of the
purchase of any Accepted Note, (b) the costs and expenses incurred in enforcing
or defending (or determining whether or how to enforce or defend) 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 Notes, or by reason of being a holder of any Note, and (c) the
costs and expenses, including financial advisors' fees, incurred in connection
with the insolvency or bankruptcy of the
Company or any Subsidiary or in connection with any work-out or restructuring of
the transactions contemplated hereby and by the Notes. The Company will pay, and
will save each Purchaser and each other holder of a Note harmless from, all
claims in respect of any fees, costs or expenses if any, of brokers and finders
(other than those retained by any Purchaser).
Survival.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the termination of this Agreement.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or 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 subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of each
Purchaser or any other holder of a Note. All statements contained in any
certificate or other instrument delivered by or on behalf of the Company
pursuant to this Agreement shall be deemed representations and warranties of the
Company under this Agreement. Subject to the preceding sentence, this Agreement
and the Notes embody the entire agreement and understanding between each
Purchaser and the Company and supersede all prior agreements and understandings
relating to the subject matter hereof.
AMENDMENT AND WAIVER.
Requirements.
This Agreement and the Notes may be amended, and the observance of any
term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Company and the
Required Holders, except that (a) no amendment or waiver of any of the
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provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it
is used therein), will be effective as to each Purchaser unless consented to by
each Purchaser in writing, and (b) no such amendment or waiver may, without the
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written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to acceleration or
-
rescission, change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of computation of
interest or of the Yield-Maintenance Amount on, the Notes, (ii) change the
--
percentage of the principal amount of the Notes the holders of which are
required to consent to any such amendment or waiver, or (iii) amend any of
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Sections 8, 11(a), 11(b), 12, 17 or 20.
Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
------------
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is
required, to enable such holder to make an informed and considered
decision with respect to any proposed amendment, waiver or consent in
respect of any of the provisions hereof or of the Notes. The Company
will deliver executed or true and correct copies of each amendment,
waiver or consent effected pursuant to the provisions of this Section
17 to each holder of outstanding Notes promptly following the date on
which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or
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cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, or grant any security, to any
holder of Notes as consideration for or as an inducement to the
entering into by any holder of Notes or any waiver or amendment of any
of the terms and provisions hereof unless such remuneration is
concurrently paid, or security is concurrently granted, on the same
terms, ratably to each holder of Notes then outstanding even if such
holder did not consent to such waiver or amendment.
Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes and is binding upon them and upon each
future holder of any Note and upon the Company without regard to whether such
Note has been marked to indicate such amendment or waiver. No such amendment or
waiver will extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any right consequent
thereon. 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, the term
"this Agreement" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
-
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
-
requested (postage prepaid), or (c) by a recognized overnight delivery service
-
(with charges prepaid). Any such notice must be sent:
(a) if to a Purchaser or its nominee, to such Purchaser or its
nominee at the address specified for such communications in Schedule A,
or at such other address as such Purchaser or its nominee shall have
specified to the Company in writing,
(b) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing, or
(c) if to the Company, to the Company at its address set forth at
the beginning hereof to the attention of J. Wes Frye, or at such other
address as the Company shall have specified to the holder of each Note
in writing.
Notices under this Section 18 will be deemed given only when actually received.
REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
-
executed, (b) documents received by each Purchaser at the Applicable Closing
-
(except the Notes themselves), and (c) financial statements, certificates and
-
other information previously or hereafter furnished to each Purchaser, may be
reproduced by each Purchaser by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and each Purchaser
may destroy any original document so reproduced. The Company agrees and
stipulates that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by each Purchaser in the
regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence. This
Section 19 shall not prohibit the Company or any other holder of Notes from
contesting any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the inaccuracy of any such
reproduction.
CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to each Purchaser by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by any
Purchaser as being confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was publicly known
- -------- -
or otherwise known to such Purchaser prior to the time of such disclosure, (b)
-
subsequently becomes publicly known through no act or omission by any such
Purchaser or any Person acting on its behalf, (c) otherwise becomes known to
-
such Purchaser other than through disclosure by the Company
or any Subsidiary or (d) constitutes financial statements delivered to any
-
Purchaser under Section 7.1 that are otherwise publicly available. Each
Purchaser will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by such Purchaser in good faith to protect
confidential information of third parties delivered to it, provided that such
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Purchaser may deliver or disclose Confidential Information to (i) its directors,
-
officers, employees, agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the investment
represented by its Notes), (ii) its financial advisors and other professional
--
advisors who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 20, (iii) any other
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holder of any Note, (iv) any Institutional Investor to which each such Purchaser
--
sells or offers to sell such Note or any part thereof or any participation
therein (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20), (v)
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any Person from which such Purchaser offers to purchase any Security of the
Company (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20), (vi)
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any federal or state regulatory authority having jurisdiction over any
Purchaser, (vii) the National Association of Insurance Commissioners or any
---
similar organization, or any nationally recognized rating agency that requires
access to information about its investment portfolio or (viii) any other Person
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to which such delivery or disclosure may be necessary or appropriate (w) to
-
effect compliance with any law, rule, regulation or order applicable to any such
Purchaser, (x) in response to any subpoena or other legal process, (y) in
- -
connection with any litigation to which any such Purchaser is a party or (z) if
-
an Event of Default has occurred and is continuing, to the extent such Purchaser
may reasonably determine such delivery and disclosure to be necessary or
appropriate in the enforcement or for the protection of the rights and remedies
under its Notes and this Agreement. Each holder of a Note, by its acceptance of
a Note, will be deemed to have agreed to be bound by and to be entitled to the
benefits of this Section 20 as though it were a party to this Agreement. On
reasonable request by the Company in connection with the delivery to any holder
of a Note of information required to be delivered to such holder under this
Agreement or requested by such holder (other than a holder that is a party to
this Agreement or its nominee), such holder will enter into an agreement with
the Company embodying the provisions of this Section 20.
SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any one of its
Affiliates or managed investment accounts or funds as the purchaser of the Notes
that such Purchaser has agreed to purchase hereunder, by written notice to the
Company, which notice shall be signed by such Purchaser and such Affiliate or
managed investment account or fund, as the case may be, shall contain such
Affiliate's or managed investment account's or fund's agreement to be bound by
this Agreement and shall contain a confirmation by such Affiliate or managed
investment account or fund of the accuracy with respect to it of the
representations set forth in Section 6. Upon receipt of such notice, wherever
the word "Purchaser" is used in this Agreement (other than in this Section 21),
such word shall be deemed to refer to such Affiliate or
managed investment account or fund in lieu of such original Purchaser. In the
event that such Affiliate or managed investment account or fund is so
substituted as a purchaser hereunder and such Affiliate or managed investment
account or fund thereafter transfers to such Purchaser all of the Notes then
held by such Affiliate or managed investment account or fund, upon receipt by
the Company of notice of such transfer, wherever the word "Purchaser" is used in
this Agreement (other than in this Section 21), such word shall no longer be
deemed to refer to such Affiliate or managed investment account or fund, but
shall refer to the original Purchaser, and such Purchaser shall have all the
rights of an original holder of the Notes under this Agreement.
MISCELLANEOUS.
Successors and Assigns.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Yield-Maintenance Amount or
interest on 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.
Severability.
Any provision of this Agreement that 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 (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
Construction.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by any Person,
or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
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. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
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
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
[Remainder of page intentionally left blank. Next page is signature page.]
Each Purchaser that is in agreement with the foregoing shall sign the
form of agreement on the accompanying counterpart of this Agreement and shall
return it to the Company, whereupon the foregoing shall become a binding
agreement between each such Purchaser and the Company.
Very truly yours,
OLD DOMINION FREIGHT LINE, INC.
By: J. Wes Frye
----------------------------
Name: J. Wes Frye
Title: Sr. VP - Finance
The foregoing is hereby agreed to
as of the date thereof:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: Thomas P. Hackett
--------------------------------
Name: Thomas P. Hackett
Title: Vice President
PRUCO LIFE INSURANCE COMPANY
By: Thomas P. Hackett
--------------------------------
Name: Thomas P. Hackett
Title: Vice President
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
By: Thomas P. Hackett
--------------------------------
Name: Thomas P. Hackett
Title: Vice President
HARTFORD LIFE INSURANCE COMPANY
By: Prudential Private Placement Investors, L.P.,
as Investment Advisor
By: Prudential Private Placement Investors, Inc.,
General Partner
By: Thomas P. Hackett
-------------------------------
Name: Thomas P. Hackett
Title: Vice President
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
- ---------------------------------------------------------------------------------------------------------------------
Purchaser Name THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
- ---------------------------------------------------------------------------------------------------------------------
Name in which to register Notes THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
- ---------------------------------------------------------------------------------------------------------------------
Note Registration Number; Principal Amount RA-1; $34,800,000
- ---------------------------------------------------------------------------------------------------------------------
Payment on account of Note
Method Federal Funds Wire Transfer
Account information The Bank of New York
New York, NY
ABA # 021-000-018
Acct # 890-0304-391
Ref: PPN# 679580 B@ 8; INV# _____
Re: (See "Accompanying information" below)
- ---------------------------------------------------------------------------------------------------------------------
Accompanying information Name of Issuer: OLD DOMINION FREIGHT LINE, INC.
Description of Security: 6.93% Senior Guarantied Note due
August 10, 2008
PPN: 679580 B@ 8
Due date and application (as among principal, premium and interest)
of the payment being made.
- ---------------------------------------------------------------------------------------------------------------------
Address for Notices Related to Payments The Prudential Insurance Company of America
c/o Investment Operations Group
Gateway Center Two, 10th Floor
100 Mulberry Street
Newark, NJ 07102
Attn: Manager, Billings and Collections
Fax: (973) 802-8764
with telephonic prepayment notice to (973) 802-6009.
------------------------------------
Fax: (973) 802-9425
and with a copy to:
------------------
Prudential Capital Group
Two Ravinia Drive, Suite 1400
Atlanta, GA 30346
Attn: Managing Director
Fax: (770) 395-8421
- ---------------------------------------------------------------------------------------------------------------------
Address for all other Notices Prudential Capital Group
Two Ravinia Drive, Suite 1400
Atlanta, GA 30346
Attn: Managing Director
Fax: (770) 395-8421
- ---------------------------------------------------------------------------------------------------------------------
Schedule A-1
- ---------------------------------------------------------------------------------------------------------------------
Purchaser Name THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
- ---------------------------------------------------------------------------------------------------------------------
Instructions re Delivery of Notes Philip Corsello, Esq.
Prudential Capital Group
1114 Avenue of the Americas, 30th Floor
New York, NY 10036
Tel: 212-626-2068
Fax: 212-626-2079
- ---------------------------------------------------------------------------------------------------------------------
Tax identification number 22-1211670
- ---------------------------------------------------------------------------------------------------------------------
Schedule A-2
- ---------------------------------------------------------------------------------------------------------------------
Purchaser Name THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
- ---------------------------------------------------------------------------------------------------------------------
Name in which to register Notes THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
- ---------------------------------------------------------------------------------------------------------------------
Note Registration Number; Principal Amount RA-2; $3,000,000
- ---------------------------------------------------------------------------------------------------------------------
Payment on account of Note
Method Federal Funds Wire Transfer
Account information The Bank of New York
New York, NY
ABA # 021-000-018
Acct # 890-0304-944
Ref: PPN# 679580 B@ 8; INV# ____
Re: (See "Accompanying information" below)
- ---------------------------------------------------------------------------------------------------------------------
Accompanying information Name of Issuer: OLD DOMINION FREIGHT LINE, INC.
Description of Security: 6.93% Senior Guarantied Note due
August 10, 2008
PPN: 679580 B@ 8
Due date and application (as among principal, premium and
interest) of the payment being made.
- ---------------------------------------------------------------------------------------------------------------------
Address for Notices Related to Payments The Prudential Insurance Company of America
c/o Investment Operations Group
Gateway Center Two, 10th Floor
100 Mulberry Street
Newark, NJ 07102
Attn: Manager, Billings and Collections
Fax: (973) 802-8764
with telephonic prepayment notice to (973) 802-6009.
------------------------------------
Fax: (973) 802-9425
and with a copy to:
------------------
Prudential Capital Group
Two Ravinia Drive, Suite 1400
Atlanta, GA 30346
Attn: Managing Director
Fax: (770) 395-8421
- ---------------------------------------------------------------------------------------------------------------------
Address for all other Notices Prudential Capital Group
Two Ravinia Drive, Suite 1400
Atlanta, GA 30346
Attn: Managing Director
Fax: (770) 395-8421
- ---------------------------------------------------------------------------------------------------------------------
Instructions re Delivery of Notes Philip Corsello, Esq.
Prudential Capital Group
1114 Avenue of the Americas, 30th Floor
New York, NY 10036
Tel: 212-626-2068
Fax: 212-626-2079
- ---------------------------------------------------------------------------------------------------------------------
Tax identification number 22-1211670
- ---------------------------------------------------------------------------------------------------------------------
Schedule A-3
- ---------------------------------------------------------------------------------------------------------------------
Purchaser Name HARTFORD LIFE INSURANCE COMPANY
- ---------------------------------------------------------------------------------------------------------------------
Name in which to register Notes HARTFORD LIFE INSURANCE COMPANY
- ---------------------------------------------------------------------------------------------------------------------
Note Registration Number; Principal Amount RA-3; $5,000,000
- ---------------------------------------------------------------------------------------------------------------------
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Chase Manhattan Bank
4 New York Plaza
New York, NY 10004
ABA # 021-000-021
Chase NYC/Cust
Acct # 900-9-000200 for F/C/T G 08965 CRD
Prin $_______; Int $_________
- ---------------------------------------------------------------------------------------------------------------------
Accompanying information Name of Issuer: OLD DOMINION FREIGHT LINE, INC.
Description of Security: 6.93% Senior Guarantied Note due
August 10, 2008
PPN: 679580 B@ 8
Due date and application (as among principal, premium and
interest) of the payment being made.
- ---------------------------------------------------------------------------------------------------------------------
Address for Notices Related to Payments Hartford Investment Management Company
c/o Portfolio Support
P.O. Box 1744
Hartford, CT 06144-1744
Fax: (860) 297-8875/8876
- ---------------------------------------------------------------------------------------------------------------------
Address for all other Notices Prudential Private Placement Investors, Inc.
Four Gateway Center, 7th Floor
100 Mulberry Street
Newark, NJ 07102
Attn: Institutional Asset Management
Tel: (973) 802-8608
Fax: (973) 802-7045
- ---------------------------------------------------------------------------------------------------------------------
Instructions re Delivery of Notes Philip Corsello, Esq.
Prudential Capital Group
1114 Avenue of the Americas, 30th Floor
New York, NY 10036
Tel: 212-626-2068
Fax: 212-626-2079
- ---------------------------------------------------------------------------------------------------------------------
Tax identification number 06-0974148
- ---------------------------------------------------------------------------------------------------------------------
Schedule A-4
=====================================================================================================================
Purchaser Name PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
- ---------------------------------------------------------------------------------------------------------------------
Name in which to register Notes PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
- ---------------------------------------------------------------------------------------------------------------------
Note Registration Number; Principal Amount RA-4; $5,200,000
- ---------------------------------------------------------------------------------------------------------------------
Payment on account of Note
Method Federal Funds Wire Transfer
Account information The Bank of New York
New York, NY
ABA # 021-000-018
Acct # 890-0304-754
Ref: PPN# 679580 B@ 8; INV# ____
Re: (See "Accompanying information" below)
- ---------------------------------------------------------------------------------------------------------------------
Accompanying information Name of Issuer: OLD DOMINION FREIGHT LINE, INC.
Description of Security: 6.93% Senior Guarantied Note due
August 10, 2008
PPN: 679580 B@ 8
Due date and application (as among principal, premium and interest) of
the payment being made.
- ---------------------------------------------------------------------------------------------------------------------
Address for Notices Related to Payments Pruco Life Insurance Company of New Jersey
c/o The Prudential Insurance Company of America
c/o Investment Operations Group
Gateway Center Two, 10/th/ Floor
100 Mulberry Street
Newark, NJ 07102
Attn: Manager, Billings and Collections
Fax: (973) 802-8764
with telephonic prepayment notice to:
------------------------------------
Manager, Trade Management Group
Tel: (973) 802-4222
Fax: (973) 802-9425
and with a copy to:
------------------
The Prudential Insurance Company of America
c/o Prudential Capital Group
Two Ravinia Drive, Suite 1400
Atlanta, GA 30346
Attn: Managing Director
Fax: (770) 395-8421
- ---------------------------------------------------------------------------------------------------------------------
Address for all other Notices The Prudential Insurance Company of America
c/o Prudential Capital Group
Two Ravinia Drive, Suite 1400
Atlanta, GA 30346
Attn: Managing Director
Fax: (770) 395-8421
=====================================================================================================================
Schedule A-5
=====================================================================================================================
Purchaser Name PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
- ---------------------------------------------------------------------------------------------------------------------
Instructions re Delivery of Notes Philip Corsello, Esq.
Prudential Capital Group
1114 Avenue of the Americas, 30th Floor
New York, NY 10036
Tel: 212-626-2068
Fax: 212-626-2079
- ---------------------------------------------------------------------------------------------------------------------
Tax identification number 22-2426091
=====================================================================================================================
Schedule A-6
=====================================================================================================================
Purchaser Name PRUCO LIFE INSURANCE COMPANY
- ---------------------------------------------------------------------------------------------------------------------
Name in which to register Notes PRUCO LIFE INSURANCE COMPANY
- ---------------------------------------------------------------------------------------------------------------------
Note registration number; Principal Amount RA-5; $2,000,000
- ---------------------------------------------------------------------------------------------------------------------
Payment on account of Note
Method Federal Funds Wire Transfer
Account information The Bank of New York
New York, NY
ABA # 021-000-018
Acct # 890-0304-421
Ref: PPN# 679580 B@ 8; INV# ____
Re: (See "Accompanying information" below)
- ---------------------------------------------------------------------------------------------------------------------
Accompanying information Name of Issuer: OLD DOMINION FREIGHT LINE, INC.
Description of Security: 6.93% Senior Guarantied Note due
August 10, 2008
PPN: 679580 B@ 8
Due date and application (as among principal, premium and interest) of
the payment being made.
- ---------------------------------------------------------------------------------------------------------------------
Address for Notices Related to Payments Pruco Life Insurance Company
c/o The Prudential Insurance Company of America
c/o Investment Operations Group
Gateway Center Two, 10/th/ Floor
100 Mulberry Street
Newark, NJ 07102
Attn: Manager, Billings and Collections
Fax: (973) 802-8764
with telephonic prepayment notice to:
------------------------------------
Manager, Trade Management Group
Tel: (973) 802-4222
Fax: (973) 802-9425
and with a copy to:
------------------
The Prudential Insurance Company of America
c/o Prudential Capital Group
Two Ravinia Drive, Suite 1400
Atlanta, GA 30346
Attn: Managing Director
Fax: (770) 395-8421
- ---------------------------------------------------------------------------------------------------------------------
Address for all other Notices The Prudential Insurance Company of America
c/o Prudential Capital Group
Two Ravinia Drive, Suite 1400
Atlanta, GA 30346
Attn: Managing Director
Fax: (770) 395-8421
=====================================================================================================================
Schedule A-7
=====================================================================================================================
Purchaser PRUCO LIFE INSURANCE COMPANY
- ---------------------------------------------------------------------------------------------------------------------
Instructions re Delivery of Notes Philip Corsello, Esq.
Prudential Capital Group
1114 Avenue of the Americas, 30th Floor
New York, NY 10036
Tel: 212-626-2068
Fax: 212-626-2079
- ---------------------------------------------------------------------------------------------------------------------
Tax identification number 22-1944557
=====================================================================================================================
Schedule A-8
SCHEDULE B
DEFINED TERMS
-------------
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Acceptance" is defined in Section 2.2(f) of this Agreement.
"Acceptance Day" is defined in Section 2.2(f) of this Agreement.
"Acceptance Window" is defined in Section 2.2(f) of this Agreement.
"Accepted Note" is defined in Section 2.2(f) of this Agreement.
"Affiliate" means, at any time, and with respect to any Person, (a) any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any Person beneficially owning or holding, directly
or indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any corporation of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% or more of any class of voting or equity interests. As used in this
definition, "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an "Affiliate"
is a reference to an Affiliate of the Company.
"Agreement, this" is defined in Section 17.3.
"Applicable Closing" is defined in the introductory paragraph of
Section 4 of this Agreement.
"Applicable Shelf Closing Day" for any Accepted Note means the Business
Day specified for the closing of the purchase and sale of such Shelf Note in the
Request for Purchase of such Accepted Note, provided that (a) if the Company and
the Purchaser which is obligated to purchase such Shelf Note agree on an earlier
Business Day for such closing, the "Applicable Shelf Closing Day" for such
Accepted Note shall be such earlier Business Day, and (b) if the closing of the
purchase and sale of such Accepted Note is rescheduled pursuant to Section 3.2,
the Applicable Shelf Closing Day for such Accepted Note, for all purposes of
this Agreement except Section 2.2(h)(ii) and 2.2(h)(iii) hereof, shall mean the
Rescheduled Closing Day with respect to such Accepted Note.
Schedule B-1
"Asset Disposition" means any Transfer except:
(a) any Transfer from the Company to a Subsidiary or from a
Subsidiary to another Subsidiary, which in either case is for Fair
Market Value, and so long as immediately before and immediately after
the consummation of any such Transfer and after giving effect thereto,
no Default or Event of Default exists; and
(b) any Transfer made in the ordinary course of business and
involving only property that is either (i) inventory held for sale or
(ii) equipment, fixtures, supplies or materials no longer required in
the operation of the business of the Company or any of its Subsidiaries
or that is obsolete.
"Authorized Officer" means
(a) for purposes of Section 2.2 of this Agreement, in the
case of the Company, any one of Earl E. Congdon, David S.
Congdon, J. Wes Frye or Joel B. McCarty, and
(b) in the case of Prudential, any officer of
Prudential designated as its "Authorized Officer" in Annex 1
attached hereto, 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.
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 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" means, at any time, the result of
------
(a) $65,000,000, minus
-----
(b) the aggregate principal amount of all outstanding Initial
Notes, minus
-----
(c) the aggregate principal amount of Accepted Notes which
have not yet been purchased and sold hereunder prior to such time, plus
----
(d) the aggregate principal amount of Notes purchased and
sold pursuant to this Agreement and thereafter retired prior to such
time (to the extent that the Company shall have agreed with Prudential
to reinstate the Facility with respect to such amount).
Schedule B-2
"Bank" means First Union National Bank, a national banking association.
"Bank Waiver" is defined in Section 9.6 of this Agreement.
"Business Day" means any day other than (a) a Saturday or a Sunday, (b)
a day on which commercial banks located in New York City or High Point, North
Carolina are required by law (other than a general banking moratorium or holiday
for a period exceeding four consecutive days) to be closed or authorized to be
closed, and (c) for purposes of Section 2.2(c) of this Agreement only, a day on
which Prudential is not open for business.
"Cancellation Date" is defined in Section 2.2(h)(iii) of this
Agreement.
"Cancellation Fee" is defined in Section 2.2(h)(iii) of this Agreement.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Lease Obligation" means, with respect to any Person and a
Capital Lease, the amount of the obligations of such Person as the lessee under
such Capital Lease which would, in accordance with GAAP, appears as a liability
on a balance sheet of such Person.
"Change in Control" is defined in Section 8.3(f).
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" is defined in the introductory paragraph of this Agreement.
"Confidential Information" is defined in Section 20 of this Agreement.
"Confirmation of Acceptance" is defined in Section 2.2(f) of this
Agreement.
"Consolidated Assets" means, at any time, the total assets of the
Company and its Subsidiaries that would be shown as assets on a consolidated
balance sheet of the Company and its Subsidiaries as of such time prepared in
accordance with GAAP, after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries.
"Consolidated Funded Debt" means, as of any date of determination, the
total of all Funded Debt of the Company and its Subsidiaries outstanding on such
date, after eliminating all offsetting debits and credits between the Company
and its Subsidiaries and all other items required to be eliminated in the course
of the preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.
Schedule B-3
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Company and its Subsidiaries for such period (taken as a
cumulative whole), as determined in accordance with GAAP, after eliminating all
offsetting debits and credits between the Company and its Subsidiaries and all
other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Company and its Subsidiaries in
accordance with GAAP.
"Consolidated Tangible Net Worth" means, at any time, the stockholders
equity of the Company and its Subsidiaries determined on a consolidated basis as
of such time in accordance with GAAP minus the net book amount of all assets of
-----
the Company and its Subsidiaries (after deducting any reserves applicable
thereto) that would be shown as intangible assets on a consolidated balance
sheet of the Company and its Subsidiaries as of such time prepared in accordance
with GAAP.
"Consolidated Total Capitalization" means, at any time, the sum of
Consolidated Tangible Net Worth and Consolidated Funded Debt, in each case
determined at such time.
"Current Management" is defined in Section 8.3(f) of this Agreement.
"Current Maturities Of Funded Debt" means, at any time and with respect
to any item of Funded Debt, the portion of such Funded Debt outstanding at such
time which by the terms of such Funded Debt or the terms of any instrument or
agreement relating thereto is due on demand or within one year from such time
(whether by sinking fund, other required prepayment or final payment at
maturity) and is not directly or indirectly renewable, extendible or refundable
at the option of the obligor under an agreement or firm commitment in effect at
such time to a date one year or more from such time.
"Debt" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including, without limitation, all
liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property);
(c) its Capital Lease Obligations;
(d) letters of credit issued for the account of such Person
including, but without duplication, amounts required to be reimbursed
by such Person to the issuer of the letter of credit;
(e) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities); and
Schedule B-4
(f) any Guaranty of such Person with respect to liabilities of
a type described in any of clauses (a) through (e) hereof.
Debt of any Person shall include all obligations of such Person of the character
described in clauses (a) through (f) to the extent such Person remains legally
liable in respect thereof notwithstanding that any such obligation is deemed to
be extinguished under GAAP. Debt shall exclude (i) any such liabilities,
obligations or guaranties referred to in clauses (a) through (f) above if owed
by the Company to a Wholly-Owned Subsidiary or by a Subsidiary to the Company or
a Wholly-Owned Subsidiary and (ii) any unfunded obligations which may exist now
or hereafter in any pension plan maintained by the Company or any Subsidiary.
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Default Rate" means that rate of interest that is the greater of (a)
2% per annum above the rate of interest stated in the first paragraph of the
Notes or (b) 2% over the rate of interest publicly announced from time to time
by The Bank of New York in New York, New York (or its successor) as its "base"
or "prime" rate.
"Delayed Delivery Fee" is defined in Section 2.2(h)(ii) of this
Agreement.
"Disposition Value" means, at any time, with respect to any property
(a) in the case of property that does not constitute Subsidiary Stock, the book
value thereof, valued at the time of such disposition in good faith by the
Company, and (b) in the case of property that constitutes Subsidiary Stock, an
amount equal to that percentage of book value of the assets of the Subsidiary
that issued such stock as is equal to the percentage that the book value of such
Subsidiary Stock represents of the book value of all of the outstanding capital
stock of such Subsidiary (assuming, in making such calculations, that all
Securities convertible into such capital stock are so converted and giving full
effect to all transactions that would occur or be required in connection with
such conversion) determined at the time of the disposition thereof, in good
faith by the Company.
"Distribution" means, in respect of any corporation, association or
other business entity: (a) dividends or other distributions or payments on
capital stock or other equity interest of such corporation, association or other
business entity (except distributions in such stock or other equity interest);
and (b) the redemption or acquisition of such stock or other equity interests or
of warrants, rights or other options to purchase such stock or other equity
interests.
"EBIT" means the earnings (or loss) before provision for income taxes
and interest for such fiscal period, as reflected on the financial statements of
the Company supplied to any holder of Notes pursuant to Section 7.1 of this
Agreement, but excluding (a) any gain or loss arising from the sale of
non-operating assets, (b) any gain arising from any write-up of assets, (c)
earnings of any Subsidiary of the Company accrued prior to the date it became a
Subsidiary, (d) earnings of any corporation, substantially all of the assets of
which have been acquired in any manner by the Company or any of its
Subsidiaries, realized by such corporation prior to the date of such
acquisition, (e) the earnings of any Person to which the assets of the Company
or any of
Schedule B-5
its Subsidiaries shall have been sold, transferred or disposed of, or into which
the Company or any of its Subsidiaries shall have been merged, or been a party
to any consolidation or other form of reorganization, prior to the date of such
transaction, (f) any gain arising from the acquisition of any securities of the
Company or any of its Subsidiaries, and (g) any gain or loss arising from
extraordinary or non-recurring items, all determined in accordance with GAAP.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
"Event of Default" is defined in Section 11 of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Facility" is defined in Section 2.2(a) of this Agreement.
"Fair Market Value" means, at any time and with respect to any
property, the sale value of such property that would be realized in an
arm's-length sale at such time between an informed and willing buyer and an
informed and willing seller (neither being under a compulsion to buy or sell).
"Financing Documents" means this Agreement, the Notes and the Guaranty
Agreement.
"Fixed Charges Coverage Ratio" means, for any fiscal quarter of the
Company, the ratio of (a) EBIT plus Gross Rents less Interest Income for such
fiscal quarter and the three (3) immediately preceding fiscal quarters to (b)
Interest Expense less Interest Income plus Gross Rents for such fiscal quarter
and the three (3) immediately preceding fiscal quarters.
"Funded Debt" means, with respect to any Person, but without
duplication (a) all Debt of such Person which by its terms or by the terms of
any instrument or agreement relating thereto matures, or which is otherwise
payable or unpaid, one year or more from, or is directly or indirectly renewable
or extendible at the option of the obligor in respect thereof to a date one year
or more (including, without limitation, an option of such obligor under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more) from, the date of the creation
thereof, (b) Capitalized Lease Obligations, (c) Current Maturities of Funded
Debt, (d) all other Debt of such Person outstanding under a working capital line
or revolving credit agreement or similar agreement unless there shall have been
during the
Schedule B-6
12 calendar month period immediately preceding any date of determination a
period of at least 30 consecutive days on each of which there shall have been no
Debt outstanding thereunder and (e) all Guaranties of any of the foregoing.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or other
political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Company or any
Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"Gross Rents" means the aggregate amount of all payments that the
Company is required to make pursuant to the terms of any lease by the Company of
any building (including, without limitation, any of the Company's leased
terminals and similar facilities) or office equipment or revenue producing
equipment which lease has a term of more than six (6) months, including renewals
thereof.
"Guarantor" means ODIS, Inc., a Delaware corporation, and a Subsidiary
of the Company.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment
-
of such indebtedness or obligation, or (ii) to maintain any working
--
capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or obligation;
Schedule B-7
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of any other Person to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or
obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Guaranty Agreement" is defined in Section 4.12.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
"Hedge Treasury Note(s)" means, with respect to any Accepted Note, the
United States Treasury Note or Notes whose cash flow duration (as determined by
Prudential) most closely matches the duration of such Accepted Note.
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1 of this Agreement.
"Initial Closing" is defined in Section 3.1 of this Agreement.
"Initial Notes" is defined in Section 1.1 of this Agreement.
"Institutional Investor" means (a) any original purchaser of a Note,
(b) any holder of a Note holding more than 5% of the aggregate principal amount
of the Notes then outstanding, (c) any institutional accredited investor or (d)
any bank, trust company, savings and loan association or other financial
institution, any pension plan, any investment company, any insurance company,
any broker or dealer, or any other similar financial institution or entity,
regardless of legal form.
"Interest Expense" means with respect to any period of determination
the total interest on Debt of the Company and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Interest Income" means, with respect to any period of determination
the Company's and each Subsidiary's total interest income during such period
determined on a consolidated basis in accordance with GAAP.
Schedule B-8
"Interest Payment Date" means (a) with respect to the Initial Notes,
February 10 or August 10 of each year; and (b) with respect to the Shelf Notes,
as indicated in such Shelf Note.
"Investment" means any investment, made in cash or by delivery of
property, by the Company or any of its Subsidiaries (a) in any Person, whether
by acquisition of stock, Debt or other obligation or Security, or by loan,
Guaranty, advance, capital contribution or otherwise, or (b) in any property.
"Issuance Period" is defined in Section 2.2(b) of this Agreement.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of the Company
and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the Company
to perform its obligations under this Agreement and the Notes, or (c) the
validity or enforceability of this Agreement or the Notes.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Net Proceeds Amount" means, with respect to any Transfer of any
property by any Person, an amount equal to the difference of (a) the aggregate
amount of the consideration (valued at the Fair Market Value of such
consideration at the time of the consummation of such Transfer) received by such
Person in respect of such Transfer, minus (b) all ordinary and reasonable
out-of-pocket costs and expenses actually incurred by such Person in connection
with such Transfer.
"Net Proceeds Of Capital Stock" means, with respect to any period, cash
proceeds (net of all costs and out-of-pocket expenses in connection therewith,
including, without limitation, placement, underwriting and brokerage fees and
expenses), received by the Company and its Subsidiaries during such period, from
the sale of all capital stock (other than Redeemable capital stock) of the
Company, including in such net proceeds: (a) the net amount paid upon issuance
and exercise during such period of any right to acquire any capital stock, or
paid during such period to convert a convertible debt Security to capital stock
(but excluding any amount paid to the Company upon issuance of such convertible
debt Security); and (b) any amount paid to the Company upon issuance of any
convertible debt Security issued after March 31, 1996 and thereafter converted
to capital stock during such period.
Schedule B-9
"1998 Holders" means, collectively, New York Life Insurance and Annuity
Corporation and Nationwide Life Insurance Company.
"Noteholder Waiver" is defined in Section 9.6 of this Agreement.
"Notes" is defined in Section 1.2 of this Agreement.
"Notice Event" is defined in Section 8.3(g) of this Agreement.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities extend to
the subject matter of such certificate.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, association, joint venture, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"property" or "properties" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, choate
or inchoate.
"Proposed Prepayment Date" is defined in Section 8.3(b) of this
Agreement.
"Prudential" is defined at the commencement of this Agreement.
"Prudential Affiliate" means (a) any corporation or other entity all of
the Voting Stock (or equivalent voting securities or interests) of which is
owned by Prudential either directly or through Affiliates of Prudential, or (b)
any fund, account or other investment vehicle that invests primarily in loans or
notes and is managed by Prudential or an Affiliate of Prudential.
"PTE" is defined in Section 6.2(a) of this Agreement.
"Purchaser" means, with respect to any Notes, one or more of Prudential
and/or the Prudential Affiliates that are purchasing such Notes.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Redeemable" means, with respect to the capital stock of any Person,
each share of such Person's capital stock that is: (a) redeemable, payable or
required to be purchased or otherwise
Schedule B-10
retired or extinguished, or convertible into Debt of such Person (i) at a fixed
or determinable date, whether by operation of a sinking fund or otherwise, (ii)
at the option of any Person other than such Person, or (iii) upon the occurrence
of a condition not solely within the control of such Person; or (b) convertible
into other Redeemable capital stock.
"Reinvestment Application" means, with respect to any Transfer of property,
the application of an amount equal to the Net Proceeds Amount with respect to
such Transfer (a) to the acquisition by the Company or any Subsidiary of
operating assets of the Company or such Subsidiary to be used in the ordinary
course of business of such Person or (b) for reinvestment in the business of the
Company or such Subsidiary as such business is conducted as of the date of this
Agreement.
"Reportable Event" means any of the events set forth in section 4043(b) of
ERISA.
"Request for Purchase" is defined in Section 2.2(d) of this Agreement.
"Required Holders" means the holder or holders of at least a majority of
the aggregate principal amount of the Notes (regardless of Series) from time to
time outstanding (exclusive of Notes then owned by any one or more of the
Company or any Affiliate).
"Rescheduled Closing Day" is defined in Section 3.2 of this Agreement.
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this agreement.
"Restricted Investments" means all Investments except the following:
(a) property to be used in the ordinary course of business of the
Company and its Subsidiaries;
(b) current assets arising from the sale of goods and services in the
ordinary course of business of the Company and its Subsidiaries;
(c) Investments in one or more Subsidiaries or any Person that
concurrently with such Investment becomes a Subsidiary;
(d) Investments existing on the date of the Initial Closing and
disclosed in Schedule C;
(e) Investments in United States Governmental Securities, provided
that such obligations mature within 365 days from the date of acquisition
thereof;
(f) Investments in certificates of deposit or banker's acceptances
issued by an Acceptable Bank, provided that such obligations mature within
365 days from the date of acquisition thereof;
Schedule B-11
(g) Investments in commercial paper given the highest rating by a
credit rating agency of recognized national standing and maturing not more
than 270 days from the date of creation thereof;
(h) Investments in Repurchase Agreements; and
(i) Investments in tax-exempt obligations of any state of the United
States of America, or any municipality of any such state, in each case
rated "AA" or better by S&P, "Aa2" or better by Moody's or an equivalent
rating by any other credit rating agency of recognized national standing,
provided that such obligations mature within 365 days from the date of
acquisition thereof.
As of any date of determination, each Restricted Investment shall be valued at
the lesser of:
(x) the amount at which such Restricted Investment is shown on the
books of the Company or any of its Subsidiaries in accordance with GAAP;
and
(y) the excess of (A) the cost thereof to the Company or its
Subsidiary over (B) any return of capital (after income taxes applicable
thereto) upon such Restricted Investment through the sale or other
liquidation thereof or part thereof or otherwise.
Notwithstanding anything contained in the foregoing to the contrary, if any
Restricted Investment is not shown on the books of the Company or any of its
Subsidiaries, such Restricted Investment shall be valued in accordance with
clause (y) above.
As used in this definition of "Restricted Investments":
"Acceptable Bank" means any bank or trust company (i) which is
organized under the laws of the United States of America or any State
thereof, (ii) which has capital, surplus and undivided profits aggregating
at least $100,000,000, and (iii) whose long-term unsecured debt obligations
(or the long-term unsecured debt obligations of the bank holding company
owning all of the capital stock of such bank or trust company) shall have
been given a rating of "A-" or better by S&P, "A3" or better by Moody's or
an equivalent rating by any other credit rating agency of recognized
national standing.
"Acceptable Broker-Dealer" means any Person other than a natural
person (i) which is registered as a broker or dealer pursuant to the
Exchange Act and (ii) whose long-term unsecured debt obligations shall have
been given a rating of "A" or better by S&P, "A2" or better by Moody's or
an equivalent rating by any other credit rating agency of recognized
national standing.
"Moody's" means Moody's Investors Service, Inc.
"Repurchase Agreement" means any written agreement (a) that
provides for (i) the transfer of one or more United States
Governmental Securities in an aggregate
Schedule B-12
principal amount at least equal to the amount of the Transfer Price
(defined below) to the Company or any of its Subsidiaries from an
Acceptable Bank or an Acceptable Broker-Dealer against a transfer of funds
(the "Transfer Price") by the Company or such Subsidiary to such Acceptable
Bank or Acceptable Broker-Dealer, and (ii) a simultaneous agreement by the
Company or such Subsidiary, in connection with such transfer of funds, to
transfer to such Acceptable Bank or Acceptable Broker-Dealer the same or
substantially similar United States Governmental Securities for a price not
less than the Transfer Price plus a reasonable return thereon at a date
certain not later than 365 days after such transfer of funds, (b) in
respect of which the Company or such Subsidiary shall have the right,
whether by contract or pursuant to applicable law, to liquidate such
agreement upon the occurrence of any default thereunder, and (c) in
connection with which the Company or such Subsidiary, or an agent thereof,
shall have taken all action required by applicable law or regulations to
perfect a Lien in such United States Governmental Securities.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc.
"United States Governmental Security" means any direct obligation
of, or obligation guarantied by, the United States of America, or any
agency controlled or supervised by or acting as an instrumentality of the
United States of America pursuant to authority granted by the Congress of
the United States of America, so long as such obligation or guaranty shall
have the benefit of the full faith and credit of the United States of
America which shall have been pledged pursuant to authority granted by the
Congress of the United States of America.
"Restricted Payment" means any Distribution in respect of the Company or
any Subsidiary of the Company (other than on account of capital stock or other
equity interests of a Subsidiary owned legally and beneficially by the Company
or another Subsidiary), including, without limitation, any Distribution
resulting in the acquisition by the Company of Securities which would constitute
treasury stock. For purposes of this Agreement, the amount of any Restricted
Payment made in property shall be the greater of (x) the Fair Market Value of
such property (as determined in good faith by the board of directors (or
equivalent governing body) of the Person making such Restricted Payment) and (y)
the net book value thereof on the books of such Person, in each case determined
as of the date on which such Restricted Payment is made.
"Sale-And-Leaseback Transaction" means a transaction or series of
transactions pursuant to which the Company or any Subsidiary shall sell or
transfer to any Person (other than the Company or a Subsidiary) any property,
whether now owned or hereafter acquired, and, as part of the same transaction or
series of transactions, the Company or any Subsidiary shall rent or lease as
lessee (other than pursuant to a Capital Lease), or similarly acquire the right
to possession or use of, such property or one or more properties which it
intends to use for the same purpose or purposes as such property.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
Schedule B-13
"Security" is defined in section 2(1) of the Securities Act.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Series" is defined in Section 1.2 of this Agreement.
"Shelf Notes" is defined in Section 1.2 of this Agreement.
"Source" is defined in Section 6.2 of this Agreement.
"Subsidiary" means, as to any Person, any corporation, association or other
business entity in which such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Company.
"Subsidiary Stock" means, with respect to any Person, the stock (or any
options or warrants to purchase stock or other Securities exchangeable for or
convertible into stock) of any Subsidiary of such Person.
"Successor Corporation" is defined in Section 10.6 of this Agreement.
"Transfer" means, with respect to any Person, any transaction in which such
Person sells, conveys, transfers or leases (as lessor) any of its property,
including, without limitation, Subsidiary Stock. For purposes of determining the
application of the Net Proceeds Amount in respect of any Transfer, the Company
may designate any Transfer as one or more separate Transfers each yielding a
separate Net Proceeds Amount. In any such case, (a) the Disposition Value of any
property subject to each such separate Transfer and (b) the amount of
Consolidated Net Income attributable to any property subject to each such
separate Transfer shall be determined by ratably allocating the aggregate
Disposition Value of, and the aggregate Consolidated Net Income attributable to,
all property subject to all such separate Transfers to each such separate
Transfer proportionately based on the net book value of the property that is
subject to each such separate Transfer.
"Voting Stock" means, with respect to any Person, capital stock of any
class or classes of a corporation, an association or another business entity,
the holders of which are ordinarily, in the absence of contingencies, entitled
to vote in the election of corporate directors (or individuals performing
similar functions) of such Person or which permit the holders thereof to control
the management of such Person, including general partnership interests in a
partnership and membership interests in a limited liability company.
Schedule B-14
"Waiver" is defined in Section 9.6 of this Agreement.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary one hundred
percent (100%) of all of the equity interests (except directors' qualifying
shares) and voting interests of which are owned by any one or more of the
Company and the Company's other Wholly-Owned Subsidiaries at such time.
"Yield-Maintenance Amount" is defined in Section 8.7 of this Agreement.
Schedule B-15
SCHEDULE C
INVESTMENTS
- -----------
None.
Schedule C-1
SCHEDULE 4.9
CHANGES IN CORPORATE STRUCTURE
------------------------------
None.
Schedule 4.9-1
SCHEDULE 5.4
SUBSIDIARIES OF THE COMPANY AND OWNERSHIP OF
--------------------------------------------
SUBSIDIARY STOCK
----------------
- -------------------------------------------------------------------------------
Subsidiary Name % Ownership of Subsidiary Stock
- -------------------------------------------------------------------------------
ODIS, Inc. 100%
- -------------------------------------------------------------------------------
Schedule 5.4-1
SCHEDULE 5.5
FINANCIAL STATEMENTS
--------------------
Annual Report for year ended 12/31/2000.
Schedule 5.5-1
SCHEDULE 5.12
ERISA AFFILIATES AND PLANS
--------------------------
None.
Schedule 5.12-1
SCHEDULE 5.14
USE OF PROCEEDS
---------------
Pay down current debt.
Schedule 5.14-1
SCHEDULE 5.15
EXISTING DEBT
-------------
General Electric Credit Corp. $ 438,441.25 *
TransAmerica Credit Corp. $ 204,174.70 *
Bank One $ 2,449,985.26 *
IBM Credit Corp. $ 1,414,880.09
--------------
$ 4,507,481.30
First Union National Bank (revolver) $49,450,000.00
New York Life Insurance Co. $26,642,857.00
Nationwide Insurance Co. $13,000,000.00
--------------
$89,092,857.00
Total Existing Debt $93,600,338.30
* Debt assumed through acquisitions.
Schedule 5.15-1
SCHEDULE 10.4
-------------
LIENS
See Schedule 5.15.
General Electric Credit Corp.
TransAmerica Credit Corp.
Bank One
IBM Credit Corp.
Schedule 10.4-1
EXHIBIT 1.1
[FORM OF INITIAL NOTE]
OLD DOMINION FREIGHT LINE, INC.
6.93% SENIOR NOTE DUE AUGUST 10, 2008
No. RA-[__] [Date]
$[________] PPN: [________]
FOR VALUE RECEIVED, the undersigned, OLD DOMINION FREIGHT LINE, INC.
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Virginia, hereby promises to pay to [_________], or
registered assigns, the principal sum of [__________] DOLLARS ($[________]) on
August 10, 2008, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.93% per
annum from the date hereof, payable quarterly, on the 10th day of each May,
August, November and February in each year, commencing with August 10, 2001,
until the principal hereof shall have become due and payable, and (b) following
the occurrence and during the continuance of any Event of Default, at a rate per
annum from time to time equal to the Default Rate (as defined in the Note
Purchase Agreement referred to below, computed on the basis of a 360-day year of
twelve 30-day months, and the actual number of days elapsed). In addition,
overdue Yield-Maintenance Amount (as defined in the Note Purchase Agreement
referred to below), if any, and overdue interest (to the extent permitted by
applicable law), if any, on this Note shall bear interest at a rate per annum
from time to time equal to the Default Rate (computed on the basis of a 360-day
year of twelve 30-day months, and the actual number of days elapsed).
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 at the address shown in the register maintained by the Company for such
purpose or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreement
referred to below.
This Note is one of a series of Senior Guarantied Notes (herein called the
"Notes") issued pursuant to a Note Purchase and Shelf Agreement, dated as of May
1, 2001 (as from time to time amended, the "Note Purchase Agreement"), between
the Company and the Purchasers named therein and is entitled to the benefits
thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i)
-
to have agreed to the confidentiality provisions set forth in Section 20 of the
Note Purchase Agreement and (ii) to have made the representation set forth in
--
Section 6.2 of the Note Purchase Agreement.
Exhibit 1.1-1
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or 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, as defined in the Note Purchase Agreement, 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 AND THE NOTE PURCHASE AGREEMENT ARE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
OLD DOMINION FREIGHT LINE, INC.
By ______________________________
Name:
Title:
Exhibit 1.1-2
EXHIBIT 1.2
[FORM OF SHELF NOTE]
OLD DOMINION FREIGHT LINE, INC.
SENIOR NOTE
No. R-___
PPN:
ORIGINAL PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE:
INTEREST RATE:
INTEREST PAYMENT DATES:/1/
-
FINAL MATURITY DATE:
PRINCIPAL INSTALLMENT DATES AND AMOUNTS:
_________________
/1/ Insert "February 10 and August 10" if interest payments are semi-
-
annually. Insert "February 10, May 10, August 10 and November 10" if interest
payments are quarterly.
Exhibit 1.2-1
FOR VALUE RECEIVED, the undersigned, OLD DOMINION FREIGHT LINE, INC. (the
"Company"), a corporation organized and existing under the laws of Virginia,
hereby promises to pay to _____________________, or registered assigns, the
principal sum of [$________________] [on the Final Maturity Date specified
above,] [payable in installments on the Principal Installment 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 on the unpaid
balance thereof (a) at the Interest Rate per annum specified above, 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) including any Yield-Maintenance Amount (as defined in the Note Purchase
Agreement referred to below) during any period in which a Default (as defined in
the Note Purchase Agreement referred to below) has occurred or is existing, at a
Default Rate [at a rate per annum from time to time equal to 2% per annum above
the Interest Rate specified above] payable on each Interest Payment Date as
aforesaid (or, at the option of the registered holder hereof, on demand).
Payments of principal of, and interest on, and any Yield-Maintenance Amount
payable with respect to, this Note are to be made at the address shown in the
register maintained by the Company for such purpose or at such other place as
the holder hereof shall designate to the Company in writing, in lawful money of
the United States of America.
This Note is one of a series of Shelf Notes (herein called the "Notes")
issued pursuant to a Note Purchase and Shelf Agreement, dated as of May 1, 2001
(the "Note Purchase Agreement"), among the Company, The Prudential Insurance
Company of America and other Purchasers listed on Schedule A attached thereto,
and is entitled to the benefits thereof. As provided in the Note Purchase
Agreement, this Note is subject to prepayment, in whole or from time to time in
part on the terms specified 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, duly
endorsed, or 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 shall not be affected by any notice to
the contrary.
In case an Event of Default, as defined in the Note Purchase Agreement,
shall occur and be continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner and with the effect provided in
the Note Purchase Agreement.
Exhibit 1.2-2
THIS NOTE AND THE NOTE PURCHASE AGREEMENT ARE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
OLD DOMINION FREIGHT LINE, INC.
By______________________________
Name:
Title:
Exhibit 1.2-3
EXHIBIT 2.2(d)
[FORM OF REQUEST FOR PURCHASE]
Reference is made to the Note Purchase Agreement (the "Agreement"), dated
as of May 1, 2001, among OLD DOMINION FREIGHT LINE, INC. (the "Company"), and
The Prudential Insurance Company of America ("Prudential") and/or its
affiliates, indirect subsidiaries or managed accounts ("Prudential Affiliates").
All terms used herein that are defined in the Agreement have the respective
meanings specified in the Agreement.
Pursuant to Section 2.2(d) of the Agreement, the Company hereby makes the
following Request for Purchase:
Aggregate principal amount of the Shelf Notes (the "Shelf Notes")
1. Aggregate Principal Amount: [$________________]
2. Final Maturities:
3. Principal Maturity Dates and Payment/2/:
-
4. Amounts and Interest Payment Periods/3/:
-
5. Interest Rate:
6. Use of proceeds of the Shelf Notes:
7. Proposed day for the closing of the purchase and sale of the Shelf
Notes:
8. The purchase price of the Shelf Notes is to be transferred to:
Name and Name, Address and Number of Telephone No.
ABA number of Bank Account of Bank Officer
------------------------------------------
9. The Company certifies (a) that the representations and warranties
contained in Section 5 of the Agreement are true on and as of the date of this
Request for Purchase except to the extent of changes caused by the transactions
contemplated in the Agreement and (b) that there exists on the date of this
Request for Purchase no Event of Default or Default.
Dated:____________________
OLD DOMINION FREIGHT LINE, INC.
By_____________________________
____________________
/2/ February 10 and August 10 if semi-annually; February 10, May 10, August
-
10 and November 10 if quarterly.
/3/ February 10 and August 10 if interest payments are semi-annually;
-
February 10, May 10, August 10 and November 10 if interest payments are
quarterly.
Exhibit 2.2(d)-1
Authorized Officer
Exhibit 2.2(d)-2
Exhibit 2.2(f)
[FORM OF CONFIRMATION OF ACCEPTANCE]
OLD DOMINION FREIGHT LINE, INC.
Reference is made to the Note Purchase and Shelf Agreement (the
"Agreement"), dated as of May 1, 2001, among OLD DOMINION FREIGHT LINE, INC.
(the "Company") and The Prudential Insurance Company of America ("Prudential")
and/or its affiliates, indirect subsidiaries or managed accounts ("Prudential
Affiliates"). All terms used herein that are defined in the Agreement have the
respective meanings specified in the Agreement.
Each of the undersigned institutions which is named below as a
Purchaser of any Accepted Notes hereby confirms the representations as to such
Accepted Notes set forth in Section 6 of the Agreement, and agrees to be bound
by the provisions of Sections 2.2(f) and 3.2 of the Agreement relating to the
purchase and sale of such Accepted Notes.
The Company certifies (a) that the representations and warranties
contained in Section 5 of the Agreement are true on and as of the date of this
Request for Purchase except to the extent of changes caused by the transactions
contemplated in the Agreement and (b) that there exists on the date of this
Request for Purchase no Event of Default or Default.
Pursuant to Section 2.2(f) of the Agreement, an Acceptance with respect
to the following Accepted Notes is hereby confirmed:
I. Aggregate principal amount ____________________
(A) (a) Name of Purchaser:
(b) Principal amount:
(c) Final Maturity Date:
(d) Principal installment dates and amounts:
(e) Interest rate:
(f) Interest payment period:
(B) (a) Name of Purchaser:
(b) Principal amount:
(c) Final Maturity Date:
(d) Principal installment dates and amounts:
(e) Interest rate:
(f) Interest payment period:
[(C),(D) same information as to any other Purchaser]
(E) Applicable Shelf Closing Day: _______________________
Dated:___________________
OLD DOMINION FREIGHT LINE,
INC.
By__________________________
Exhibit 2.2(f)-1
Title:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By__________________________________
Vice President
[Signature block for each named Purchaser other than Prudential]
Exhibit 2.2(f)-2
EXHIBIT 4.3(a)
[FORM OF OFFICER'S CERTIFICATE]
OLD DOMINION FREIGHT LINE, INC.
CERTIFICATE OF OFFICER
I, J. Wes Frye, hereby certify that I am the Sr. Vice President Finance,
CFO and Assistant Secretary of OLD DOMINION FREIGHT LINE, INC., a Virginia
corporation (the "Company"), and that, as such, I have access to its records and
am familiar with the matters herein certified, and I am authorized to execute
and deliver this Certificate in the name of and on behalf of the Company, and
that:
1. This certificate is being delivered pursuant to Section 4.3(a) of the
Note Purchase and Shelf Agreement (the "Note Purchase Agreement"), dated as of
May ___, 2001, entered into by the Company and each of the purchasers listed on
Schedule A thereto (together with any affiliates thereof, the "Purchasers"). The
terms used in this certificate and not defined herein have the respective
meanings specified in the Note Purchase Agreement.
2. The warranties and representations of the Company contained in Section
5 of the Note Purchase Agreement are true on the date hereof with the same
effect as though made on and as of the date hereof.
3. The Company has performed and complied with all agreements and
conditions contained in the Note Purchase Agreement that are required to be
performed or complied with by the Company before or at the date hereof.
4. On the date hereof, no Default or Event of Default has occurred or is
continuing.
5. Joel B. McCarty, Jr., from the date hereof, has been and is the duly
elected, qualified and acting Secretary of the Company, and the signature
appearing on the Certificate of the Secretary dated the date hereof and
delivered to the Purchasers contemporaneously herewith is his genuine signature.
IN WITNESS WHEREOF, I have executed this Certificate in the name and on
behalf of the Company on May ___, 2001.
OLD DOMINION FREIGHT LINE, INC.
By:____________________________
Name: J. Wes Frye
Title: SVP - Finance
Exhibit 4.3(a)-1
EXHIBIT 4.3(b)
[FORM OF SECRETARY'S CERTIFICATE]
OLD DOMINION FREIGHT LINE, INC.
CERTIFICATE OF SECRETARY
I, Joel B. McCarty, Jr., hereby certify that I am the duly elected,
qualified and acting Secretary of OLD DOMINION FREIGHT LINE, INC., a Virginia
corporation (the "Company"), and that, as such, I have access to its records and
am familiar with the matters herein certified, and I am authorized to execute
and deliver this certificate in the name and on behalf of the Company, and
further certify as follows.
1. This certificate is being delivered pursuant to Section 4.3(b) of
the Note Purchase and Shelf Agreement (the "Note Purchase Agreement"), dated as
of May ___, 2001, entered into by the Company and each of the purchasers listed
on Schedule A thereto (together with any affiliates thereof, the "Purchasers").
The terms used in this certificate and not defined herein have the respective
meanings specified in the Note Purchase Agreement.
2. Attached hereto as Attachment A is a true and correct copy of
resolutions, and the preamble thereto, adopted by the Board of Directors of the
Company on January 30, 2001, and such resolutions and preamble set forth in
Attachment A hereto were duly adopted by said Board of Directors and are in full
force and effect on and as of the date hereof, not having been amended, altered
or repealed, and such resolutions are filed with the records of the Board of
Directors.
3. (a) The documents listed below were executed and delivered by the
Company pursuant to and in accordance with the resolutions set forth in
Attachment A hereto and said documents as executed are substantially in the form
submitted to and approved by the Board of Directors of the Company as
aforementioned:
(i) the Note Purchase Agreement; and
(ii) the Initial Notes in the aggregate principal amount of
$50,000,000.
(b) The Board of Directors of the Company have also approved the form
of Shelf Note contained in Exhibit 1.2 to the Note Purchase Agreement; Shelf
Notes will be issued on various dates subsequent to the date hereof up to an
aggregate amount of $15,000,000.
Exhibit 4.3(b)-1
4. Attached hereto as Attachment B is a true, correct and complete
copy of the Amended and Restated Articles of Incorporation and Amended and
Restated By-laws of the Company as in full force and effect on and as of the
date hereof, which Amended and Restated Articles of Incorporation have been in
full effect in said form at all times from September 18, 1991 and Amended and
Restated By-laws have been in full effect in said form at all times from August
19, 1991 to the date hereof, inclusive, without modification or amendment in any
respect.
5. Each of the officers of the Company listed on Attachment C has been
a duly elected, qualified and acting officer of the Company holding the office
or offices set forth below opposite his or her name from May 9, 1997 to the date
hereof, inclusive, and the signature appearing opposite the name of each such
person on Attachment C is his or her genuine signature.
6. Attached hereto as Attachment D is a good standing certificate in
respect of the Company from the State of Virginia, which certificate lists and
attaches all corporate documents filed with the Secretary of State of Virginia
on or prior to the date hereof in respect of the Company.
IN WITNESS THEREOF, I have hereunto set my hand on May ___, 2001.
OLD DOMINION FREIGHT LINE, INC.
By: _____________________________________
Name: Joel B. McCarty, Jr.
Title: Sr. VP, General Counsel, Secretary
Exhibit 4.3(b)-2
Attachment A
BOARD OF DIRECTORS OF OLD DOMINION FREIGHT LINE, INC.
RESOLUTIONS ADOPTED
The undersigned, being the Secretary of Old Dominion Freight Line,
Inc., a Virginia corporation, hereby certifies that the following is a true,
correct and complete copy of a Resolution adopted by the Board of Directors of
Old Dominion Freight Line, Inc. by virtue of certain action taken by the Board
of Directors of Old Dominion Freight Line, Inc. by a Meeting held on January 30,
2001.
"Wes Frye reported to the Board that he felt that it would be
in the best interest of the Company to seek a credit facility in the
form of a private placement and in the amount of $50,000,000.00 in
order to take advantage of the reduction in treasury rates and spread
and to fix interest rates over a larger period of time to meet the
Company real estate purchase and construction requirement. The proceeds
will be used to pay down the outstanding balance on the First Union
revolver $50,000,000.00 credit facility.
Therefore, upon motion duly made, seconded and unanimously carried it
was:
RESOLVED: that Wes Frye be and is hereby authorized to
negotiate and enter into a private placement financing facility in the
total sum of $50,000,000.00 upon such terms, conditions and rate of
interest as he deems appropriate and that David S. Congdon, J. Wes Frye
and Joel B. McCarty, Jr. are authorized to execute such note and other
instruments necessary to accomplish this purpose."
WITNESS the hand and seal of the undersigned this ___ day of May, 2001.
_________________________ [SEAL]
Joel B. McCarty, Jr.
Secretary
Exhibit 4.3(b)-3
Attachment B
AMENDED AND RESTATED ARTICLES OF INCORPORATION AND
AMENDED AND RESTATED BYLAWS OF THE COMPANY
[To be supplied by Company.]
Exhibit 4.3(b)-4
Attachment C
SPECIMEN SIGNATURES OF OFFICERS EXECUTING DOCUMENTS
Name Title(s) Signature
- ---- -------- ---------
David S. Congdon _______________________________ ________________________
J. Wes Frye Senior Vice President Finance, CFO &
Assistant Secretary ________________________
Joel B. McCarty, Jr. Senior Vice President, General Counsel &
Secretary ________________________
Exhibit 4.3(b)-5
Attachment D
GOOD STANDING CERTIFICATE OF THE COMPANY
[To be supplied by Company.]
Exhibit 4.3(b)-6
EXHIBIT 4.4(a)(i)
[FORM OF OPINION OF SPECIAL COUNSEL FOR THE COMPANY]
Exhibit 4.4(a)(i)-1
EXHIBIT 4.4(a)(ii)
[FORM OF OPINION OF SPECIAL COUNSEL FOR THE PURCHASERS]
Exhibit 4.4(a)(ii)-1
EXHIBIT 4.12
[FORM OF GUARANTY AGREEMENT]
ANNEX 1
Prudential Authorized Officers:
- ------------------------------
Thomas P. Hackett
Vice President
Philip F. Corsello, Esq.
General Counsel