<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____________ to ____________
Commission file number 1-8247
JOHNS MANVILLE CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 84-0856796
- ------------------------------- -------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
717 17th Street
Denver, Colorado 80202
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(303) 978-2000
--------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
At August 9, 1999, there were 147,242,724 shares of the registrant's common
stock outstanding.
<PAGE>
*PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
--------------------
* "Johns Manville", the "Company," "JM," "we," "us" and "our" when used in
this report refers to Johns Manville Corporation, incorporated in the State
of Delaware in 1991, and includes, where applicable, its consolidated
subsidiaries.
I-1
<PAGE>
JOHNS MANVILLE CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEET
(Thousands of dollars)
(Unaudited)
<TABLE>
<CAPTION>
June 30, December 31,
ASSETS 1999 1998
- --------------------------------------------------------------------------
<S> <C> <C>
Current Assets
Cash and equivalents $ 32,436 $ 12,350
Marketable securities, at cost,
which approximates market 2,671 4,168
Receivables 341,037 264,407
Inventories 143,439 131,709
Prepaid expenses 13,126 12,560
Deferred tax assets 39,208 36,648
---------- ----------
Total Current Assets 571,917 461,842
Property, Plant and Equipment,
net of accumulated depreciation
of $702,016 and $691,335, respectively 996,393 864,158
Deferred Tax Assets 158,615 164,024
Goodwill, net of accumulated amortization
of $34,952 and $27,166, respectively 283,621 248,692
Acquisition Deposit (Note 7) 227,300
Other Assets 242,902 241,169
---------- ----------
$2,253,448 $2,207,185
========== ==========
LIABILITIES
- --------------------------------------------------------------------------
Current Liabilities
Short-term debt $ 2,237 $ 4,641
Accounts payable 146,345 128,688
Compensation and employee benefits 96,907 99,320
Income taxes 12,841 16,539
Other accrued liabilities 88,389 68,781
---------- ----------
Total Current Liabilities 346,719 317,969
Long-Term Debt, less current portion 497,430 587,276
Postretirement Benefits Other Than Pensions 188,353 186,949
Deferred Income Taxes and Other
Noncurrent Liabilities 318,722 324,883
---------- ----------
1,351,224 1,417,077
---------- ----------
Commitments and Contingencies
STOCKHOLDERS' EQUITY
- --------------------------------------------------------------------------
Common Stock 1,643 1,638
Capital in Excess of Par Value 550,148 544,667
Treasury Stock, at cost (63,067) (63,067)
Unearned Stock Compensation (3,518) (4,836)
Retained Earnings 407,811 314,605
Accumulated Other Comprehensive Income 9,207 (2,899)
---------- ----------
902,224 790,108
---------- ----------
$2,253,448 $2,207,185
========== ==========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
I-2
<PAGE>
JOHNS MANVILLE CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF INCOME
(Thousands of dollars, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Six Months
Ended June 30, Ended June 30,
--------------------- ----------------------
1999 1998 1999 1998
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net Sales $558,852 $445,224 $1,054,610 $834,560
Cost of Sales 396,953 325,376 756,882 618,964
Selling, General and Administrative 46,261 45,042 100,012 87,942
Research, Development
and Engineering 10,373 8,282 20,087 15,897
Other Income (Expense), net
(Note 2) (6,089) 34,464 (13,446) 34,361
---------------------------------------------------
Income from Operations 99,176 100,988 164,183 146,118
Interest Income 536 1,587 1,164 3,452
Interest Expense 7,271 9,919 14,915 21,977
---------------------------------------------------
Income before Income Taxes,
Extraordinary Item and Cumulative
Effect of Accounting Change 92,441 92,656 150,432 127,593
Income Tax Expense (Note 3) 12,046 27,688 32,343 36,595
---------------------------------------------------
Income before Extraordinary Item
and Cumulative Effect of
Accounting Change 80,395 64,968 118,089 90,998
Extraordinary Loss on Early
Extinguishment of Debt,
net of tax (Note 4) (5,758) (31,754) (5,758) (31,754)
Cumulative Effect of a Change in
Accounting for Furnace Rebuilds,
net of tax (Note 5) 27,409
---------------------------------------------------
Net Income $ 74,637 $ 33,214 $ 112,331 $ 86,653
============================================================================================
Comprehensive Income $ 79,520 $ 35,419 $ 124,437 $ 87,153
===================================================
EARNINGS PER COMMON SHARE
- --------------------------------------------------------------------------------------------
Basic:
Income before Extraordinary Item
and Cumulative Effect of
Accounting Change $ .51 $ .41 $ .74 $ .57
Extraordinary Loss on Early
Extinguishment of Debt,
net of tax (Note 4) (.04) (.20) (.04) (.20)
Cumulative Effect of a Change in
Accounting for Furnace Rebuilds,
net of tax (Note 5) .17
---------------------------------------------------
Net Income $ .47 $ .21 $ .70 $ .54
============================================================================================
Diluted:
Income before Extraordinary Item
and Cumulative Effect of
Accounting Change $ .50 $ .40 $ .73 $ .56
Extraordinary Loss on Early
Extinguishment of Debt,
net of tax (Note 4) (.04) (.20) (.04) (.20)
Cumulative Effect of a Change in
Accounting for Furnace Rebuilds,
net of tax (Note 5) .17
---------------------------------------------------
Net Income $ .46 $ .20 $ .69 $ .53
============================================================================================
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
I-3
<PAGE>
JOHNS MANVILLE CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Thousands of dollars)
(Unaudited)
<TABLE>
<CAPTION>
Six Months
Ended June 30,
--------------------------
CASH FLOWS FROM OPERATING ACTIVITIES: 1999 1998
- -------------------------------------------------------------------------------
<S> <C> <C>
Net income $112,331 $ 86,653
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 57,404 46,376
Deferred taxes 11,153 1,532
Pension and postretirement benefits, net 9,878 (107)
Cumulative effect of accounting change (27,409)
Other, net 7,509 6,814
(Increase) decrease in current assets:
Receivables (39,871) (55,773)
Inventories 12,929 (2,555)
Prepaid expenses (329) (2,669)
Increase (decrease) in current liabilities:
Accounts payable 9,724 3,160
Compensation and employee benefits (4,920) (957)
Income taxes (3,286) 5,397
Other accrued liabilities (8,676) (12,116)
Change in other noncurrent liabilities (5,028) (18,513)
--------------------------
Net cash provided by operating activities 158,818 29,833
--------------------------
CASH FLOWS FROM INVESTING ACTIVITIES:
- -------------------------------------------------------------------------------
Purchases of property, plant and equipment (65,032) (52,417)
Acquisitions (55,037)
Proceeds from sales of assets 15 3,191
Purchases of held-to-maturity securities (1,014) (2,748)
Purchases of available-for-sale securities (4,507) (541)
Proceeds from maturities of held-to-maturity
securities 3,688 13,553
Proceeds from sales or maturities of
available-for-sale securities 5,160 20,403
Increase in other assets (5,180) (5,007)
--------------------------
Net cash used in investing activities (66,870) (78,603)
--------------------------
CASH FLOWS FROM FINANCING ACTIVITIES:
- -------------------------------------------------------------------------------
Issuances of debt 9,200 411,234
Payments on debt (66,088) (421,999)
Dividends on common stock (19,078) (12,929)
Treasury and other stock transactions 4,640 (43,521)
--------------------------
Net cash used in financing activities (71,326) (67,215)
--------------------------
Effect of Exchange Rate Changes on Cash (536) (781)
--------------------------
Net Increase (Decrease) in Cash and Equivalents 20,086 (116,766)
Cash and Equivalents at Beginning of Period 12,350 132,137
--------------------------
Cash and Equivalents at End of Period $ 32,436 $ 15,371
===============================================================================
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
I-4
<PAGE>
JOHNS MANVILLE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
The condensed consolidated financial statements of Johns Manville Corporation as
of June 30, 1999 and December 31, 1998 and for the three and six months ended
June 30, 1999 and 1998 reflect all normal, recurring adjustments which are, in
the opinion of management, necessary for a fair presentation of the financial
condition and the results of operations for the periods presented. The year-end
condensed consolidated balance sheet was derived from audited financial
statements, and as presented does not include all disclosures required by
generally accepted accounting principles. JM has reclassified the presentation
of certain prior period information to conform with the current presentation
format. Additional information regarding JM's accounting policies, operations
and financial position is contained or incorporated in JM's Form 10-K for the
year ended December 31, 1998 filed with the Securities and Exchange Commission.
Note 1 - Inventories
The major classes of inventories were as follows:
<TABLE>
<CAPTION>
(Thousands of dollars)
June 30, December 31,
1999 1998
-------- --------
<S> <C> <C>
Finished goods $ 96,600 $ 84,393
Raw materials and supplies 35,961 33,371
Work-in-process 10,878 13,945
-------- --------
$143,439 $131,709
======== ========
</TABLE>
Note 2 - Other Income (Expense), net
JM sold its five percent net smelter royalty on certain metals produced by the
Stillwater Mining Company for cash resulting in other income of $36 million in
the second quarter of 1998.
Note 3 - Income Taxes
JM's year-to-date effective tax rates were approximately 22 percent in 1999 and
29 percent in 1998. JM receives a tax deduction and a related reduction in its
effective tax rate for all payments JM makes to the Manville Personal Injury
Settlement Trust (the "Trust") and for all proceeds the Trust receives from
sales of JM's common stock at the time such payments or proceeds are transferred
to a special designated settlement fund of the Trust or paid to claimants. JM
benefited from such stock sale proceeds and dividends during both years.
JM's income tax expense of $32.3 million for the first six months of 1999 at an
annual effective tax rate of approximately 22 percent reflects benefits from
July 1999 Trust stock sale proceeds (see Note 6). JM's first quarter 1999
income tax expense of $20.3 million at an effective rate of 35 percent did not
include such benefits as Trust stock sale proceeds were not anticipated at that
time. Consequently, income tax expense for the second quarter of 1999 was $12
million representing a 13 percent effective tax rate.
Note 4 - Debt
On June 30, 1999, JM prepaid a bond payable to the Trust in the principal amount
of $23.9 million, resulting in a loss on the early extinguishment of debt of
$5.8 million, net of taxes of $3.6 million. The bond consisted
I-5
<PAGE>
of fixed payments totaling $75 million per year in 2013 and 2014 and had been
discounted at 13 percent. In the second quarter of 1998, JM repurchased, through
a cash tender offer, substantially all of its $400 million of 10.875 percent
senior notes due 2004. This transaction resulted in an extraordinary loss on the
early extinguishment of debt of $31.8 million, net of taxes of $18.1 million.
In order to fix a portion of JM's variable interest rate debt and reduce the
aggregate risk to movements in interest rates, JM has interest rate swaps with
notional values totaling approximately $100 million. At June 30, 1999, the fair
market value of these instruments reflected unrecognized losses of approximately
$2.4 million.
On July 7, 1999, JM issued $200 million of unsecured senior notes in two
tranches: $75 million at 7.71 percent due in 2006; and $125 million at 7.92
percent due in 2009. The proceeds were used to repurchase shares from the Trust
(see Note 6) and repay existing indebtedness.
Note 5 - Cumulative Effect of Accounting Change
Effective January 1, 1998, JM changed its method of accounting for glass furnace
rebuild costs to the capitalization method from the allowance method. Under the
capitalization method, costs to periodically rebuild the refractory components
of the glass furnaces are capitalized when incurred and depreciated on a
straight-line basis over the estimated useful life of the rebuild. The
capitalization method provides an improved measure of JM's capital investment
and is consistent with industry practice. Previously, estimated costs to
rebuild furnaces were credited to an allowance and charged to operations over
the estimated period to the next rebuild date. The cumulative effect of this
change in accounting principle increased 1998 earnings by $27.4 million, net of
taxes of $17.9 million.
Note 6 - Earnings Per Common Share and Equity
Basic and diluted earnings per common share amounts were determined using the
reported net income and the following common equivalent shares:
<TABLE>
<CAPTION>
Second Quarter First Six months
1999 1998 1999 1998
- -------------------------------------- -------------------------
<S> <C> <C> <C> <C>
Basic 160,233,000 158,726,000 160,095,000 160,174,000
Diluted 161,536,000 161,655,000 161,891,000 162,625,000
</TABLE>
The difference between the basic and diluted weighted average shares outstanding
is due to stock options and deferred stock rights. JM paid regular quarterly
dividends of $0.06 per common share totaling $9.6 million, and $0.12 per common
share totaling $19.1 million, in the second quarter and first six months of
1999, respectively. JM paid regular quarterly dividends of $0.04 per common
share totaling $6.5 million, and $0.08 per common share totaling $12.9 million,
for the second quarter and first six months of 1998, respectively.
In July, 1999, JM purchased 12.2 million shares of its common stock from the
Trust at $13.675 per share. Accordingly, treasury stock, at cost, of $166.8
million will be recorded in the third quarter of 1999. In the second quarter of
1998, JM purchased 3.6 million shares of its common stock from the Trust at $13
per share and recorded treasury stock, at cost, of $46.8 million.
I-6
<PAGE>
Note 7 - Acquisitions
On January 1, 1999, JM completed the acquisition of Hoechst's
Spunbond/Monofilament operations. This acquisition expands existing product
lines of JM's Engineered Products segment in North America and Europe. The cash
payment for this acquisition, accounted for under the purchase method, was
$227.3 million, subject to certain post-closing adjustments including
finalizations of the value of working capital acquired and ownership transfer of
a plant located in China. The acquisition was financed with borrowings from JM's
credit facilities. The acquisition borrowings, drawn during 1998, were shown as
the acquisition deposit on JM's December 31, 1998 balance sheet. The allocation
of the purchase price will be finalized during 1999 upon completion of asset
valuations, determination of preacquisition contingencies and finalization of
restructuring decisions. Based on preliminary estimates, JM's June 30, 1999
balance sheet reflects the following allocation of the $227.3 million cash
payment:
<TABLE>
<CAPTION>
(Thousands of dollars)
- ------------------------------------------------------------
<S> <C>
Current Assets $ 74,756
Noncurrent Assets (including Goodwill) 179,295
Liabilities Assumed (26,751)
- ------------------------------------------------------------
Cash Payment $227,300
============================================================
</TABLE>
The consolidated results of operations on a pro forma basis as if the operations
had been acquired as of the beginning of 1998 were as follows:
<TABLE>
<CAPTION>
(Thousands of dollars,
except per share amounts)
- ----------------------------------------------------------------------------
Three Months Ended Six Months Ended
June 30, 1998 June 30, 1998
- ----------------------------------------------------------------------------
<S> <C> <C>
Net Sales $509,217 $953,960
Income before Extraordinary Item and
Cumulative Effect of Accounting Change $ 69,151 $ 96,506
Net Income $ 37,397 $ 92,161
Diluted Earnings Per Share:
Income before Extraordinary Item and
Cumulative Effect of Accounting Change $0.43 $0.59
Net Income $0.23 $0.56
- ----------------------------------------------------------------------------
</TABLE>
The estimated pro forma information is presented for informational purposes only
and is not necessarily indicative of the results of operations that would have
occurred had the acquisition been completed as of the above date, nor are they
necessarily indicative of future results of operations.
Note 8 - New Accounting Pronouncements
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities." This statement, along with Statement of Financial
Accounting Standards No. 137, "Accounting for Derivative Instruments and Hedging
Activities - Deferral of the Effective Date of FASB Statement No. 133 - an
amendment of FASB Statement No. 133" issued in July 1999, is effective for all
fiscal quarters of fiscal years beginning after June 15, 2000 and establishes
accounting and reporting standards for derivative instruments and for hedging
activities. It requires that JM recognize all derivatives as either assets or
liabilities in the statement of financial position and measure those instruments
at fair value. At this time, JM cannot determine the effects, if any, adopting
this statement will have on its financial condition, liquidity or results of
operations.
I-7
<PAGE>
Note 9 - Business Segment Information
JM reports separately the results of the Insulation, Roofing Systems and
Engineered Products segments. The Insulation segment consists of JM's building,
commercial/industrial and original equipment manufacturers ("OEM") insulation
businesses. The Roofing Systems segment consists of JM's commercial/industrial
roofing systems business. The Engineered Products segment consists of JM's mats
and fibers, glass fabrics and air filtration businesses.
<TABLE>
<CAPTION>
(Thousands of dollars)
Three Months
Ended June 30,
- -------------------------------------------------------------------
NET SALES 1999 1998
- -------------------------------------------------------------------
<S> <C> <C>
Insulation $ 203,020 $ 173,226
Roofing Systems 162,122 147,346
Engineered Products 204,579 131,348
Eliminations (10,869) (6,696)
- -------------------------------------------------------------------
$ 558,852 $ 445,224
===================================================================
INCOME FROM OPERATIONS
- -------------------------------------------------------------------
Insulation $ 44,538 $ 23,181
Roofing Systems 16,766 15,381
Engineered Products 37,872 26,438
Corporate and Eliminations (Note 2) 35,988
- -------------------------------------------------------------------
$ 99,176 $ 100,988
===================================================================
<CAPTION>
Six Months
Ended June 30,
- -------------------------------------------------------------------
NET SALES 1999 1998
- -------------------------------------------------------------------
<S> <C> <C>
Insulation $ 396,002 $ 337,605
Roofing Systems 283,960 252,769
Engineered Products 395,127 257,200
Eliminations (20,479) (13,014)
- -------------------------------------------------------------------
$1,054,610 $ 834,560
===================================================================
INCOME FROM OPERATIONS
- -------------------------------------------------------------------
Insulation $ 83,643 $ 41,690
Roofing Systems 21,472 19,748
Engineered Products 59,068 48,692
Corporate and Eliminations (Note 2) 35,988
- -------------------------------------------------------------------
$ 164,183 $ 146,118
===================================================================
<CAPTION>
June 30, December 31,
OPERATING ASSETS 1999 1998
- -------------------------------------------------------------------
<S> <C> <C>
Insulation $ 522,029 $ 512,428
Roofing Systems 456,462 429,342
Engineered Products 795,349 591,839
Corporate (32,401) (39,216)
- -------------------------------------------------------------------
$1,741,439 $1,494,393
===================================================================
</TABLE>
Net sales included in Eliminations relate principally to intersegment sales from
the Engineered Products segment to the Roofing Systems segment at prices
approximating market. Operating assets primarily include amounts directly
assignable to each segment. These include trade receivables totaling $307.4
million and $239.9 million at June 30, 1999 and December 31, 1998, respectively;
inventory (at standard cost); goodwill; property, plant and equipment; and
capitalized software. Capitalized software included in
I-8
<PAGE>
operating assets was $10.6 million at June 30, 1999, and $10 million at December
31, 1998. Corporate operating assets relate principally to the adjustment of
business segment inventories to a LIFO basis.
I-9
<PAGE>
Item 2.
JOHNS MANVILLE CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Results of Operations
Net sales in the second quarter of 1999 increased $113.7 million, or 25.5
percent, to $558.9 million from $445.2 million for the same period of 1998.
Gross profit increased $42.1 million to $161.9 million from $119.8 million. The
gross profit margin for the second quarter of 1999 increased to 29 percent
compared with 26.9 percent for the same period of 1998 primarily due to an
improved pricing environment in building insulation and contributions from
acquisitions. Selling, general and administrative and research, development and
engineering expenses, combined, increased $3.3 million, or 6.2 percent, to $56.6
million in 1999, in part due to acquisitions completed over the last year.
However, these expenses were lower as a percentage of sales at 10.1 percent
compared with 12 percent for 1998. Other expense, net, for 1999 was $6.1 million
reflecting higher pension expenses and higher goodwill amortization. Other
income for 1998 included proceeds of $36 million from the sale of JM's five
percent net smelter royalty on certain metals produced by Stillwater Mining
Company. Income from operations for the second quarter of 1999 was $99.2
million, up 52.6 percent, compared with $65 million for the second quarter of
1998, excluding the royalty gain.
Net sales in the first half of 1999 increased $220 million, or 26.4 percent, to
$1,054.6 million from $834.6 million for the same period of 1998. Gross profit
increased $82.1 million to $297.7 million from $215.6 million. The gross profit
margin for the first half of 1999 increased to 28.2 percent from 25.8 percent
for 1998. Selling, general and administrative and research, development and
engineering expenses, combined, increased $16.3 million, or 15.7 percent, to
$120.1 million in 1999, and were lower as a percentage of sales at 11.4 percent
compared with 12.4 percent for 1998. Other expense, net, for 1999 was $13.4
million and includes higher pension expenses, goodwill amortization and expenses
related to JM's exploration of strategic alternatives. Other income for 1998
was $34.4 million, including the royalty proceeds and settlement of escrowed
funds related to a landfill site formerly used by JM. Income from operations
for the first half of 1999 was $164.2 million, up 49 percent, compared with
$110.1 million for 1998, excluding the royalty gain.
Insulation Segment
Net sales increased $29.8 million, or 17.2 percent, to $203 million for the
second quarter of 1999 from $173.2 million in 1998. Income from operations
increased 92 percent to $44.5 million for the second quarter of 1999 from $23.2
million in 1998. For the first half of 1999, net sales increased $58.4 million,
or 17.3 percent, to $396 million from $337.6 million in 1998. For the same
period, income from operations doubled to $83.6 million. Reflecting strength
across JM's building insulation business, these increases are due largely to
improved selling prices, along with volume growth, as this industry has
continued to operate at full capacity in favorable North American residential
construction markets. The selling price improvements, along with volume and
productivity increases, also led to strong margins for both periods of 1999. Net
sales and gross profits in commercial and industrial insulation for the three
and six month periods of
I-10
<PAGE>
1999 increased moderately compared with 1998 reflecting strength in OEM and fire
protection insulation volumes.
Roofing Systems Segment
Net sales increased $14.8 million, or 10 percent, to $162.1 million for the
second quarter of 1999 from $147.3 million for the second quarter of 1998. For
the six months ended June 30, 1999, net sales increased $31.2 million, or 12.3
percent, to $284 million compared with $252.8 million for the same period of
1998. These increases were driven by incremental volume growth from a December
1998 acquisition, coupled with strong demand throughout the industry. Despite
selling price pressures, volume-driven improvements for the 1999 periods led to
a 9 percent operating income increase to $16.8 million for the second quarter
and an 8.7 percent increase to $21.5 million for the first half of 1999.
Engineered Products Segment
Net sales increased $73.3 million, or 55.8 percent, to $204.6 million in the
second quarter of 1999 compared with $131.3 million for 1998. Income from
operations for the second quarter of 1999 increased $11.5 million, or 43.2
percent, to $37.9 million from $26.4 million for 1998. For the first half of
1999, net sales increased $137.9 million, or 53.6 percent, to $395.1 million
from $257.2 million. Income from operations for the six month periods increased
$10.4 million, or 21.3 percent, to $59.1 million for 1999 from $48.7 million in
1998. The incremental impacts of JM's January 1, 1999 acquisition of Hoechst's
Spunbond/Monofilament North American and European operations, produced
substantial increases in net sales, gross margin and operating income. The U.S.
mats and fibers business experienced significantly higher sales for both 1999
periods on volume growth from increased demand in roofing mats, specialty mats
and base fibers. Despite the volume gains, 1999 gross margins and operating
incomes for this business were adversely impacted by costs associated with a
scheduled furnace rebuild and an unfavorable product mix. Meanwhile, sales and
operating income declined for European mats and fibers and fabrics businesses
during 1999, reflecting continuing softness in European markets. Operating
income declined significantly in the filtration business in the second quarter
and first half of 1999 on lower volumes and selling prices related primarily to
continuing competitive pressures and weakness in Asian markets.
Interest Expense, net
Interest expense, net of interest income, decreased $1.6 million, or 19.2
percent, to $6.7 million for the second quarter of 1999 compared with $8.3
million in 1998. Compared with the same period of 1998, interest expense, net,
decreased $4.8 million, or 25.8 percent, to $13.8 million for the first six
months of 1999. These reductions were primarily due to the repurchase of
substantially all of JM's $400 million of 10.875 percent senior notes in May
1998 using revolving credit facilities with significantly lower interest rates.
Strong 1999 cash flows also contributed to the lower interest expenses, net.
Income Taxes
JM's year-to-date effective tax rates were approximately 22 percent in 1999 and
29 percent in 1998. JM receives a tax deduction and a related reduction in its
effective tax rate for all payments JM makes to the Manville Personal Injury
Settlement Trust (the "Trust") and for all proceeds the Trust receives from
sales of JM's common stock at the time such payments or proceeds are transferred
to a special designated settlement fund of the Trust or paid to claimants. JM
benefited from such stock sale proceeds and dividends during both years.
I-11
<PAGE>
JM's income tax expense of $32.3 million for the first six months of 1999 at an
annual effective tax rate of approximately 22 percent reflects benefits from
July 1999 Trust stock sale proceeds. JM's first quarter 1999 income tax expense
of $20.3 million at an effective rate of 35 percent did not include such
benefits as Trust stock sale proceeds were not anticipated at that time.
Consequently, income tax expense for the second quarter of 1999 was $12 million
representing a 13 percent effective tax rate.
Under Section 468B of the U.S. Internal Revenue Code, JM is responsible for
income taxes on the taxable income of the Trust's specific settlement fund at a
tax rate of 15 percent. Any such taxes paid generate a tax deduction for JM.
JM cannot predict the amount of any such future tax obligations. However,
related liabilities could become material in certain situations including the
Trust monetizing, and retaining the proceeds of, a significant portion of its
investment in JM's common stock or the settlement of this obligation between JM
and the Trust.
Extraordinary Loss on Early Extinguishment of Debt
On June 30, 1999, JM prepaid a bond payable to the Trust in the principal amount
of $23.9 million, resulting in a loss on the early extinguishment of debt of
$5.8 million ($0.04 per share), net of taxes of $3.6 million. The bond
consisted of fixed payments totaling $75 million per year in 2013 and 2014 and
had been discounted at 13 percent.
During the second quarter of 1998, JM repurchased substantially all of its $400
million of 10.875 percent senior notes due 2004. The repurchase, consisting of
a tender offer for cash, resulted in an extraordinary loss on the early
extinguishment of debt of $31.8 million ($0.20 per share), net of taxes of $18.1
million.
Cumulative Effect of Accounting Change
Effective January 1, 1998, JM changed its method of accounting for glass furnace
rebuild costs to the capitalization method from the allowance method. The
cumulative effect of this change in accounting principle increased 1998 earnings
by $27.4 million ($0.17 per share), net of taxes of $17.9 million.
Net Income
Due to the factors discussed above, JM's net income for the second quarter of
1999 was $74.6 million, or $0.46 per diluted share, compared with net income for
the second quarter of 1998 of $33.2 million, or $0.20 per diluted share. Year-
to-date net income for 1999 was $112.3 million, or $0.69 per diluted share
compared with net income for the same period of 1998 of $86.7 million, or $0.53
per diluted share.
Liquidity and Capital Resources
Johns Manville Corporation's agreements with its lenders contain financial and
general covenants. These include, among other things, limitations on borrowings,
investments and asset dispositions, and maintenance of various financial ratios.
Noncompliance with these or other covenants, or the occurrence of any other
event of default, could result in the termination of existing credit agreements
and the acceleration of debt owed by JM and its subsidiaries. At June 30, 1999,
JM was in compliance with these covenants.
At June 30, 1999, JM had net working capital of $225.2 million, including cash
and marketable securities totaling $35.1 million. Total cash and marketable
securities located outside the U.S. and Canada were approximately $26.1 million.
At December 31, 1998, cash and marketable securities totaled
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<PAGE>
$16.5 million. At June 30, 1999, JM had approximately $255 million available
under its $750 million unsecured multicurrency revolving credit facilities. JM's
international subsidiaries had additional borrowing and working capital
facilities totaling approximately $16.5 million, of which $14.9 million was
available at June 30, 1999.
Net operating activities provided $158.8 million of cash during the first six
months of 1999, including the premium on the prepayment of the bond payable to
the Trust. Net operating activities for the same period of 1998 provided $29.8
million, including the gain from the sale of the Stillwater mining royalty,
partially offset by the premium on the prepayment of the 10.875 percent senior
notes. Cash flows from operating activities are primarily influenced by selling
prices, sales volume and working capital requirements. As discussed in "Results
of Operations," JM benefited from selling price improvements, particularly in
building insulation, and overall volume increases during the first half of 1999.
Operating activities also included cash outlays to build working capital for the
construction season, which typically peaks during the third quarter. Such cash
usages were significantly lower in 1999 due to improved working capital
management, along with lower inventory builds resulting from high levels of
demand in building insulation and mats and fibers as these businesses operated
at full capacity. JM expects 1999 operating results to benefit from continued
strength in construction markets and housing starts, along with continuing
integration of acquisitions. Meanwhile, slower economic activity in Europe and
Asia may continue to adversely impact results in the Engineered Products
segment.
Investing activities for the six months ended June 30, 1999 included $65 million
for capital expenditures, principally to increase building insulation capacity
and to complete a furnace rebuild for mats and fibers. Estimated 1999 capital
expenditures total approximately $140 million excluding acquisitions, of which
approximately $59 million relate to capacity expansion projects. As of June 30,
1999, outstanding purchase commitments for capital projects totaled $23.6
million. Investing activities for the first half of 1998 included the combined
purchase prices for acquisitions of $55 million, net of cash acquired, and
capital expenditures of $52.4 million.
Financing activities for the first half of 1999 consisted of repayments of debt
totaling $66.1 million, including the prepayment of $23.9 million of the bond
payable to the Trust discussed above. Also during 1999 JM borrowed, and
subsequently repaid, $8.9 million under foreign facilities. In addition, JM
paid dividends of $0.12 per common share totaling $19.1 million, and received
$4.6 million during the first half of 1999 from the exercise of stock options
previously granted to employees. JM's financing activities for the first half
of 1998 reflected repayments of debt totaling $422 million and issuances of debt
totaling $411.2 million, net, relating primarily to the second quarter
repurchase of its 10.875 percent senior notes. Also in 1998, JM purchased 3.6
million shares of its common stock from the Trust at $13 per share, and
recognized treasury stock, at cost, of $46.8 million and paid dividends of $0.08
per common share totaling $12.9 million.
On July 7, 1999, JM issued $200 million of unsecured senior notes in two
tranches: $75 million at 7.71 percent due in 2006; and $125 million at 7.92
percent due in 2009. A portion of the proceeds were used to partially finance
the July 1999 purchase of 12.2 million shares of JM's common stock from the
Trust at
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<PAGE>
$13.675 per share, resulting in the third quarter recognition of treasury stock
of $166.8 million. The remaining proceeds were used to repay existing
indebtedness.
Contingent Product Liability
Between 1988 and 1992, JM manufactured phenolic roofing insulation which may,
under certain circumstances, contribute to the corrosion of metal decks on which
it is installed. Subsequently, JM began a voluntary program to inspect such
metal decks and remediate where appropriate. JM has accrued for costs relating
to future inspections, remediation and anticipated claims. These accruals are
based on JM's historical experience regarding the incidence of corrosion and the
cost of remediation and include a number of assumptions related to the types of
roofs on which phenolic insulation has been installed as well as the assumption
that our past remediation experience will continue over the remaining lives of
roofs insulated with JM's phenolic roofing insulation.
Pursuant to reimbursement agreements with JM's liability carriers and former
owner of the phenolic roofing insulation business, JM is entitled to receive
reimbursement for a substantial portion of future costs to be incurred by JM for
inspection and remediation.
In 1996, JM and a third party were named as defendants in two class action
cases, now consolidated, filed in U.S. District Court in Boston, Massachusetts.
The plaintiffs purport to represent all building owners in the U.S. with
phenolic insulation installed on their roof decks and seek damages and
injunctive relief, including an order requiring the removal and replacement of
the phenolic insulation and remediation of any deck corrosion. JM is defending
these allegations vigorously.
JM has reviewed its historical inspection and remediation experience and the
terms and collectibility of amounts under the reimbursement agreements in light
of the contingencies described above. Based on the information available to
date and subject to the assumptions described above, if additional costs are
incurred in excess of the accrued amounts, such costs are not expected to have a
material adverse effect on JM's financial condition, liquidity or results of
operations.
Environmental Contingencies
At June 30, 1999, JM had remediation activities in progress at four sites, out
of a total of 15 such sites for which JM has identified environmental conditions
requiring remediation. In addition, JM has been identified as a potentially
responsible party at 15 sites JM did not own or operate under the federal
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA")
or similar state legislation. Of these 15 sites, JM's potential liability for 12
sites will be determined pursuant to the settlement agreement described in the
following paragraph. Three of the sites may not be subject to the settlement
agreement and, accordingly, JM could be jointly and severally liable for costs
of remediating these sites. At one of the sites, only part of the liability will
be determined by the settlement agreement with the rest of the liability being
the subject of a U.S. Environmental Protection Agency ("EPA") de minimis
settlement offer.
In 1994, the U.S. government and JM settled certain litigation concerning
disposal activities prior to consummation of JM's plan of reorganization. The
settlement agreement, which was made a court order, limits JM's future liability
under both CERCLA and the Resource Conservation and Recovery Act ("RCRA") to 55
percent of its share of site-wide response costs and natural
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<PAGE>
resources damages without regard to joint and several liability for disposals
made by JM prior to consummation of its plan of reorganization. The agreement
resolved JM's liability at certain historical sites and also covers CERCLA and
RCRA liability for other disposal sites at which the EPA has incurred or may
incur response costs and which were used by JM prior to the consummation of the
plan of reorganization. The agreement provides that the amount JM will be
obligated to pay, in the aggregate, for such sites shall never exceed $850,000
during any given year. The EPA and others from time to time commence cleanup
activities at such sites, and in the future, the EPA and others may assert
claims against JM with respect to such sites. JM believes that all such
activities and claims, if any, will be subject to the agreement.
As a result of factors such as changes in federal and state regulations, the
application and effectiveness of remedial actions, the difficulty in assessing
the extent of environmental contamination, and the allocation of costs among
potentially responsible parties, actual costs to be incurred for environmental
cleanup may vary from previous estimates. Subject to the uncertainties inherent
in evaluating environmental exposures, and based on information presently
available, including JM's historical remediation experience, currently enacted
environmental laws and regulations, and existing remediation technology, JM
believes that if additional costs are incurred in excess of the accrued amounts,
such costs are not expected to have a material adverse effect on JM's financial
condition, liquidity or results of operations.
Year 2000 Compliance
JM is engaged in a comprehensive project to modify its systems for year 2000
compliance. JM's approach to year 2000 compliance activities may be broken down
into five general areas:
. inventory,
. analysis/planning,
. testing and repair/modification,
. certification, and
. contingency plans.
As of June 30, 1999, JM has completed substantially all of the inventory and
analysis/planning phases of the project which involved obtaining systems
inventories including:
. embedded technology,
. performing on-site audits at operating locations,
. contacting vendors to obtain compliant releases of hardware and software,
. establishing project plans, and
. associated implementation schedules.
Testing and repair/modification work and surveys of major suppliers to determine
their level of compliance began during the second quarter of 1998 and were
substantially completed during the second quarter of 1999. Certifications began
during the fourth quarter of 1998, and were substantially completed by the
second quarter of 1999. Business continuity and contingency plans, including
among other things manual equipment operations and scheduling, are currently
being developed to address high risk areas as they are identified with
contingency plans in place by the end of 1999. To date, the phases of the
project currently underway have progressed substantially as planned. Failure by
JM or its vendors and
I-15
<PAGE>
customers to achieve year 2000 compliance could result in a disruption of
operations possibly impacting our ability to:
. obtain raw materials,
. produce products, or
. collect revenues.
However, JM believes that its compliance efforts will be successful and that
significant disruptions of operations are unlikely to develop. JM has spent
approximately $3 million through June 30, 1999 on year 2000 projects and
activities. Total costs for year 2000 related projects and activities, expected
to be completed in 1999, are currently estimated to be in the $4 to $5 million
range. However, if additional costs are incurred in excess of the above
estimates, such costs are not expected to have a material adverse effect on JM's
financial condition, liquidity, or results of operations. All expenditures will
be funded through operations and will directly impact the reported level of
future income. The above discussion regarding costs, risks and estimated
completion dates for year 2000 compliance activities is based on estimates given
information that is currently available, and is subject to change.
Introduction of the Euro
On January 1, 1999, eleven countries of the European Union established a new
single European currency (the "Euro"). The Euro will become a currency in its
own right and will completely replace the currencies of the participating
countries by 2002. This conversion may affect, among other things, cross-border
competition among member countries, product pricing, exchange rate risk and
derivatives exposure, and information technology and systems. JM's European
businesses, primarily in the Engineered Products segment, accounted for
approximately 20 percent of total sales for the first half of 1999. JM is
addressing issues related to the conversion and, at this time, is not expecting
material adverse effects on its financial condition, liquidity, or results of
operations.
Acquisition
On January 1, 1999, JM completed the acquisition of Hoechst's
Spunbond/Monofilament operations. This acquisition expands existing product
lines of the Engineered Products segment in North America and Europe. The cash
payment for this acquisition, accounted for under the purchase method, was
$227.3 million subject to certain post-closing adjustments including
finalizations of the value of working capital acquired and ownership transfer of
a plant located in China. The acquisition was financed with borrowings from
credit facilities. The acquisition borrowings, drawn during December 1998, were
shown as the acquisition deposit on the balance sheet at December 31, 1998. The
preliminary allocation of the cash payment is reflected in the June 30, 1999
balance sheet and will be finalized during 1999 upon completion of asset
valuations and determination of preacquisition contingencies and finalization
of restructuring decisions.
Johns Manville Corporation believes that its current cash position, funds
available under credit facilities, and cash generated from operations will
enable it to satisfy its debt service requirements, its ongoing capital
expansion program and its other ongoing operating costs. However, JM may need to
access capital markets to pay the principal of its credit facilities, or in
connection with share repurchases or possible significant acquisitions.
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<PAGE>
Forward-Looking Statements
This report contains "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. Statements of JM contained in
this report concerning matters that are not historical facts, including, without
limitation, statements concerning:
. expected continued benefits from the integration of acquisitions,
. effect on 1999 operating results from strength in construction markets
and housing starts,
. possible earnings decline from the economic slow down in Europe and
Asia in the Engineered Products segment,
. expectations concerning levels of capital spending,
. expectations as to contingencies related to taxes, phenolic roofing
insulation and environmental liabilities,
. estimates on the ability of JM and its vendors and customers to
replace, modify or upgrade computer systems in ways that adequately
address the year 2000 issue,
. expectations regarding the Euro conversion and
. the ability to satisfy its debt service requirements, its ongoing
capital expansion program and its other ongoing operating costs
constitute such forward-looking statements. See "Liquidity and Capital
Resources."
Forward-looking statements of JM are subject to risks and uncertainties that
could cause actual results to differ materially from those expressed in such
statements. Important factors relating to such risks and uncertainties are set
forth below.
Factors that could affect the forward-looking statements generally are related
to demand for JM's products, overall capacity levels in the industry and the
overall competitive environment in which we operate. These factors are
discussed in "Business" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" in Johns Manville Corporation's Annual
Report on Form 10-K for the year ended December 31, 1998.
Factors that could affect JM's expected levels of capital spending, ability to
satisfy debt service requirements, ongoing capital expansion program and other
ongoing operating costs, include, without limitation, the general factors noted
above, the level of cash flow generated by JM and the ability of JM to otherwise
fund such commitments, which in turn could be affected by general U.S. and
international economic conditions as well as financial market conditions.
JM's ability to realize expected benefits from acquisitions depends on a number
of factors including, without limitation, successful integration of newly
acquired operations, technology, products, employees and the overall economic
factors referred to above.
Specific factors that might affect the ability of JM and its vendors and
customers to replace, modify or upgrade systems in ways that adequately address
the year 2000 issue include the ability to identify and correct all relevant
systems, unanticipated difficulties or delays in the implementation of our
remediation plans and the ability of third parties to adequately address their
own year 2000 issues, as well as those issues discussed in "Liquidity and
Capital Resources - Year 2000 Compliance."
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<PAGE>
For a discussion of factors concerning contingencies related to taxes, phenolic
roofing insulation, environmental matters and the introduction of the Euro, see
"Results of Operations - Income Taxes" and "Liquidity and Capital Resources -
Contingent Product Liability, Environmental Contingencies and Introduction of
the Euro."
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<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
-----------------
Not applicable.
ITEM 2. CHANGES IN SECURITIES.
---------------------
Not applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
-------------------------------
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
---------------------------------------------------
On April 23, 1999, the Company's Annual Meeting of Stockholders was held in
Denver, Colorado and the following items were voted upon and approved by the
stockholders.
1. The following Directors were elected by the stockholders:
NAME FOR VOTE WITHHELD
---- --- -------------
Leo Benatar 155,705,365 100,612
Ernest H. Drew 155,708,350 97,627
Robert A. Falise 155,385,821 420,156
Todd Goodwin 155,711,575 94,402
Michael N. Hammes 155,716,249 89,728
Kathryn Rudie Harrigan 155,708,728 97,249
Charles L. Henry 155,702,727 103,250
Louis Klein, Jr. 155,384,130 421,847
Christian E. Markey, Jr. 155,709,343 96,634
William E. Mayer 155,714,471 91,506
2. Approval of the appointment of the firm of PricewaterhouseCoopers LLP
as independent accountants of the Company for the fiscal year ending December
31, 1999.
For: 155,707,151 Against: 57,810
Abstain: 41,016 Broker Non-Vote: -0-
II-1
<PAGE>
ITEM 5. OTHER INFORMATION.
------------------
Not applicable.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
--------------------------------
(a) Exhibits.
--------
Exhibit 4.1, Johns Manville International, Inc. and Johns Manville
Corporation Note Purchase Agreement of $200,000,000 Series A Senior
Notes, dated July 7, 1999.
Exhibit 10.1, Share Purchase and Bond Discharge Agreement between
Johns Manville Corporation and Manville Personal Injury Settlement
Trust dated June 7, 1999.
Exhibit 27.1, Financial Data Schedule.
(b) Form 8-K.
--------
None.
II-2
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
JOHNS MANVILLE CORPORATION
--------------------------
(Registrant)
Date: August 16, 1999 By: /s/ D. D. Persson
----------------------------
D. D. Persson
Vice President, Assistant
General Counsel and Secretary
Date: August 16, 1999 By: /s/ J. P. Murphy
----------------------------
J. P. Murphy
Senior Vice President and
Chief Financial Officer
II-3
<PAGE>
EXHIBIT 4.1
JOHNS MANVILLE INTERNATIONAL, INC.
$200,000,000 Series A Senior Notes
$75,000,000 7.71% Series A Senior Notes,
Tranche 1, Due July 7, 2006
$125,000,000 7.92% Series A Senior Notes,
Tranche 2, Due July 7, 2009
---------------
NOTE PURCHASE AGREEMENT
---------------
Dated July 7, 1999
<PAGE>
1. AUTHORIZATION OF NOTES................................................. 1
2. SALE AND PURCHASE OF NOTES............................................. 1
2.1 Series A Notes................................................. 1
2.2 Additional Series of Notes..................................... 2
3. CLOSING................................................................ 3
4. CONDITIONS TO CLOSING.................................................. 3
4.1 Representations and Warranties.................................. 3
4.2 Performance; No Default......................................... 3
4.3 Compliance Certificates......................................... 4
4.4 Opinions of Counsel............................................. 4
4.5 Purchase Permitted By Applicable Law, etc....................... 4
4.6 Sale of Other Notes............................................. 4
4.7 Payment of Special Counsel Fees................................. 4
4.8 Private Placement Number........................................ 5
4.9 Changes in Corporate Structure.................................. 5
4.10 Proceedings and Documents....................................... 5
4.11 Delivery of Company and Issuer Documents........................ 5
4.12 Conditions to Issuance of Additional Notes...................... 6
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE ISSUER.......................................................... 6
5.1 Organization; Power and Authority............................... 6
5.2 Authorization, etc.............................................. 7
5.3 Disclosure...................................................... 7
5.4 Organization and Ownership of Shares of Subsidiaries;
Affiliates...................................................... 7
i
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5.5 Financial Statements............................................ 8
5.6 Compliance with Laws, Other Instruments, etc.................... 8
5.7 Governmental Authorizations, etc................................ 9
5.8 Litigation; Observance of Agreements, Statutes and Orders....... 9
5.9 Taxes........................................................... 9
5.10 Title to Property; Leases....................................... 10
5.11 Licenses, Permits, etc.......................................... 10
5.12 Compliance with ERISA........................................... 10
5.13 Private Offering by the Issuer.................................. 11
5.14 Use of Proceeds; Margin Regulations............................. 11
5.15 Existing Debt; Future Liens..................................... 12
5.16 Foreign Assets Control Regulations, etc......................... 12
5.17 Status under Certain Statutes................................... 12
5.18 Environmental Matters........................................... 13
5.19 Year 2000....................................................... 13
6. REPRESENTATIONS OF THE PURCHASER........................................ 13
6.1 Purchase for Investment......................................... 13
6.2 Source of Funds................................................. 13
7. INFORMATION AS TO COMPANY AND ISSUER.................................... 14
7.1 Financial and Business Information.............................. 14
7.2 Officer's Certificate........................................... 17
7.3 Inspection...................................................... 17
ii
<PAGE>
8. PREPAYMENT OF THE NOTES................................................ 18
8.1 Required Prepayments........................................... 18
8.2 Optional Prepayments with Make-Whole Amount.................... 18
8.3 Change in Control.............................................. 19
8.4 Allocation of Partial Prepayments.............................. 20
8.5 Maturity; Surrender, etc....................................... 20
8.6 Purchase of Notes.............................................. 20
8.7 Make-Whole Amount.............................................. 21
9. AFFIRMATIVE COVENANTS.................................................. 22
9.1 Compliance with Law............................................ 22
9.2 Insurance...................................................... 22
9.3 Maintenance of Properties...................................... 23
9.4 Payment of Taxes and Claims.................................... 23
9.5 Corporate Existence, etc....................................... 23
9.6 Execution of Subsidiary Guaranty............................... 23
10. NEGATIVE COVENANTS..................................................... 24
10.1 Transactions with Affiliates................................... 24
10.2 Merger, Consolidation, Sale of Assets, etc..................... 25
10.3 Liens.......................................................... 27
10.4 Minimum Consolidated Net Worth................................. 29
10.5 Limitation on Consolidated Debt................................ 29
10.6 Nature of Business............................................. 30
iii
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11. EVENTS OF DEFAULT...................................................... 30
12. REMEDIES ON DEFAULT, ETC............................................... 32
12.1 Acceleration................................................... 32
12.2 Other Remedies................................................. 33
12.3 Rescission..................................................... 33
12.4 No Waivers or Election of Remedies, Expenses, etc.............. 33
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.......................... 34
13.1 Registration of Notes.......................................... 34
13.2 Transfer and Exchange of Notes................................. 34
13.3 Replacement of Notes........................................... 34
14. PAYMENTS ON NOTES...................................................... 35
14.1 Place of Payment............................................... 35
14.2 Home Office Payment............................................ 35
15. EXPENSES, ETC.......................................................... 35
15.1 Transaction Expenses........................................... 35
15.2 Survival....................................................... 36
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
ENTIRE AGREEMENT....................................................... 36
17. AMENDMENT AND WAIVER................................................... 36
17.1 Requirements................................................... 36
17.2 Solicitation of Holders of Notes............................... 37
17.3 Binding Effect, etc............................................ 37
17.4 Notes held by Issuer, etc...................................... 37
18. NOTICES................................................................ 38
iv
<PAGE>
19. REPRODUCTION OF DOCUMENTS.............................................. 38
20. CONFIDENTIAL INFORMATION............................................... 39
21. SUBSTITUTION OF PURCHASER.............................................. 40
22. GUARANTY............................................................... 40
22.1 Guaranty....................................................... 40
22.2 Terms of Guaranty.............................................. 40
23. MISCELLANEOUS.......................................................... 42
23.1 Successors and Assigns......................................... 42
23.2 Payments Due on Non-Business Days.............................. 42
23.3 Severability................................................... 42
23.4 Construction................................................... 43
23.5 Counterparts................................................... 43
23.6 Governing Law.................................................. 43
v
<PAGE>
SCHEDULE A - INFORMATION RELATING TO PURCHASERS
SCHEDULE B - DEFINED TERMS
SCHEDULE 4.9 - Changes in Corporate Structure
SCHEDULE 5.3 - Disclosure Materials
SCHEDULE 5.4 - Subsidiaries and Ownership of Subsidiary Stock
SCHEDULE 5.5 - Financial Statements
SCHEDULE 5.8 - Certain Litigation
SCHEDULE 5.11 - Patents, etc.
SCHEDULE 5.14 - Use of Proceeds
SCHEDULE 5.15 - Existing Debt
SCHEDULE 10.3 - Liens
EXHIBIT 1-A-1 - Form of 7.71% Series A Senior Note, Tranche 1,
due 2006
EXHIBIT 1-A-2 - Form of 7.92% Series A Senior Note, Tranche 2,
due 2009
EXHIBIT 4.4(a) - Matters to Be Covered in Opinion of Assistant
General Counsel to the Company, the Issuer and
the Subsidiary Guarantors
EXHIBIT 4.4(b) - Form of Opinion of Special Counsel for the
Purchasers
EXHIBIT 9.6(a) - Form of Subsidiary Guaranty
EXHIBIT S - Form of Supplement to Note Purchase Agreements
vi
<PAGE>
JOHNS MANVILLE INTERNATIONAL, INC.
JOHNS MANVILLE CORPORATION
717 17th Street
Denver, Colorado 80202
7.71% Series A Senior Notes, Tranche 1, due July 7, 2006
7.92% Series A Senior Notes, Tranche 2, due July 7, 2009
July 7, 1999
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
Each of the undersigned, Johns Manville International, Inc., a
Delaware corporation (the "Issuer"), and Johns Manville Corporation, a Delaware
corporation (the "Company"), agrees with you as follows:
1. AUTHORIZATION OF NOTES.
The Issuer will authorize the issue and sale of $200 million aggregate
principal amount of its Series A Senior Notes, comprised of $75 million 7.71%
Series A Senior Notes, Tranche 1, due July 7, 2006 (the "Series A Notes, Tranche
1") and $125 million 7.92% Series A Senior Notes, Tranche 2, due July 7, 2009
(the "Series A Notes, Tranche 2" and, together with the Series A Notes, Tranche
1, the "Series A Notes", such latter term to include any such notes issued in
substitution therefor pursuant to Section 13 of this Agreement or the Other
Agreements (as hereinafter defined)). The Series A Notes, Tranche 1, shall be
substantially in the form set out in Exhibit 1-A-1, and the Series A Notes,
Tranche 2, shall be substantially in the form set out in Exhibit 1-A-2, in each
case with such changes therefrom, if any, as may be approved by you and the
Issuer. The Notes shall at all times be guaranteed by the Company pursuant to
the terms hereof and by the Subsidiary Guarantors, if any, pursuant to the
Subsidiary Guaranty. Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit" are, unless
otherwise specified, to a Schedule or an Exhibit attached to this Agreement.
2. SALE AND PURCHASE OF NOTES.
2.1 Series A Notes.
Subject to the terms and conditions of this Agreement, the Issuer will
issue and sell to you and you will purchase from the Issuer, at the Closing
provided for in Section 3, Series A Notes in the principal amount specified
opposite your name in Schedule A at the purchase
<PAGE>
price of 100% of the principal amount thereof. Contemporaneously with entering
into this Agreement, the Company and the Issuer are entering into separate Note
Purchase Agreements (the "Other Agreements") identical with this Agreement with
each of the other purchasers named in Schedule A (the "Other Purchasers"),
providing for the sale at such Closing to each of the Other Purchasers of Notes
in the principal amount specified opposite its name in Schedule A. Your
obligation hereunder and the obligations of the Other Purchasers under the Other
Agreements are several and not joint obligations and you shall have no
obligation under any Other Agreement and no liability to any Person for the
performance or non-performance by any Other Purchaser thereunder.
2.2 Additional Series of Notes.
The Issuer may, from time to time, in its sole discretion but subject
to the terms hereof, issue and sell one or more additional Series of its
unsecured promissory notes under the provisions of this Agreement and the Other
Agreements (collectively, the "Agreements") pursuant to a supplement (a
"Supplement") substantially in the form of Exhibit S. Each additional Series of
Notes (the "Additional Notes") issued pursuant to a Supplement shall be subject
to the following terms and conditions:
(a) each Series of Additional Notes, when so issued, shall be
differentiated from all previous series by sequential alphabetical designation
inscribed thereon;
(b) Additional Notes of the same Series may consist of more than one
different and separate tranches and may differ with respect to outstanding
principal amounts, maturity dates, interest rates and premiums, if any, and
price and terms of redemption or payment prior to maturity, but all such
different and separate tranches of the same Series shall vote as a single class
and constitute one Series;
(c) each Series of Additional Notes shall be dated the date of issue,
bear interest at such rate or rates, mature on such date or dates, be subject to
such mandatory and optional prepayment on the dates and at the premiums, if any,
have such additional or different conditions precedent to closing, such
representations and warranties and such additional covenants as shall be
specified in the Supplement under which such Additional Notes are issued;
(d) each reference to "you" in the Agreements shall be deemed to be a
reference to each Additional Purchaser, unless otherwise specified in the
applicable Supplement or unless the context otherwise requires;
(e) each Series of Additional Notes issued under the Agreements shall
be in substantially the form of Exhibit 1 to Exhibit S hereto with such
variations, omissions and insertions as are necessary or permitted hereunder;
(f) the minimum principal amount of any Note issued under a
Supplement shall be $1,000,000, except as may be necessary to evidence the
outstanding amount of any Note originally issued in a denomination of $1,000,000
or more;
(g) all Additional Notes shall constitute senior Debt of the Issuer
and shall rank pari passu with all other outstanding Notes; and
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(h) no Additional Notes shall be issued hereunder if at the time of
issuance thereof and after giving effect to such issuance and the application of
the proceeds thereof, there exists or would exist any Default or Event of
Default.
3. CLOSING.
The sale and purchase of the Series A Notes to be purchased by you and
the Other Purchasers shall occur at the offices of O'Melveny & Myers LLP, 400
South Hope Street, Los Angeles, California 90071, at 8:00 a.m., Los Angeles
time, at a closing (the "Closing") on July 7, 1999 or on such other Business Day
thereafter on or prior to July 9, 1999 as may be agreed upon by the Company, the
Issuer and you and the Other Purchasers. At the Closing the Issuer will deliver
to you the Series A Notes to be purchased by you in the form of a single Series
A Note for each Tranche to be purchased (or such greater number of Series A
Notes in denominations of at least $100,000 as you may request) dated the date
of the Closing and registered in your name (or in the name of your nominee),
against delivery by you to the Issuer 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 Issuer to account number
1990472 at Mellon Bank, Pittsburgh, ABA #043000261. If at the Closing the
Issuer shall fail to tender such Series A Notes to you as provided above in this
Section 3, or any of the conditions specified in Section 4 shall not have been
fulfilled to your satisfaction, you shall, at your election, be relieved of all
further obligations under this Agreement, without thereby waiving any rights you
may have by reason of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Series A Notes to be sold
to you at the Closing is subject to the fulfillment to your satisfaction, prior
to or at the Closing, of the following conditions:
4.1 Representations and Warranties.
The representations and warranties of the Company and the Issuer in
this Agreement shall be correct when made and at the time of the Closing.
4.2 Performance; No Default.
Each of the Company and the Issuer shall have performed and complied
with all agreements and conditions contained in this Agreement required to be
performed or complied with by it prior to or at the Closing (unless so waived by
you) and, after giving effect to the issue and sale of the Series A Notes (and
the application of the proceeds thereof as contemplated by Schedule 5.14), no
Default or Event of Default shall have occurred and be continuing. Neither the
Company nor any Subsidiary shall have entered into any transaction since the
date of the Memorandum that would have been prohibited by Sections 10.1, 10.3 or
10.5 hereof had such Sections applied since such date.
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4.3 Compliance Certificates.
(a) Officer's Certificate. Each of the Company and the Issuer shall
have delivered to you an Officer's Certificate, dated the date of the Closing,
certifying that the conditions specified in Sections 4.1, 4.2 and 4.9 have been
fulfilled.
(b) Secretary's Certificate. Each of the Company and the Issuer shall
have delivered to you a certificate certifying as to the resolutions attached
thereto and other corporate proceedings relating to the authorization, execution
and delivery of the Agreements and, in the case of the Issuer, the Series A
Notes.
4.4 Opinions of Counsel.
You shall have received opinions in form and substance satisfactory to
you, dated the date of the Closing (a) from Dion Persson, Esq., Assistant
General Counsel for the Company and the Issuer, covering the matters set forth
in Exhibit 4.4(a) and covering such other matters incident to the transactions
contemplated hereby as you or your counsel may reasonably request (and the
Company hereby instructs its counsel to deliver such opinion to you) and (b)
from O'Melveny & Myers LLP, your special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(b) and covering
such other matters incident to such transactions as you may reasonably request.
4.5 Purchase Permitted By Applicable Law, etc.
On the date of the Closing your purchase of Series A Notes shall (i)
be permitted by the laws and regulations of each jurisdiction to which you are
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, (ii) 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 (iii) not subject you 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 requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may reasonably specify
to enable you to determine whether such purchase is so permitted.
4.6 Sale of Other Notes.
Contemporaneously with the Closing, the Issuer shall sell to the Other
Purchasers and the Other Purchasers shall purchase the Series A Notes to be
purchased by them at the Closing as specified in Schedule A.
4.7 Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company and/or
the Issuer shall have paid on or before the Closing the reasonable fees, charges
and disbursements actually incurred or to be incurred by your special counsel
referred to in Section 4.4 to the extent reflected in a statement of such
counsel rendered to the Company or the Issuer at least one Business Day prior to
the Closing.
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4.8 Private Placement Number.
A Private Placement number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for the Series
A Notes, Tranche 1, and for the Series A Notes, Tranche 2.
4.9 Changes in Corporate Structure.
Except as specified in Schedule 4.9, neither the Company nor the
Issuer shall 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 of any other entity, at any time following
the date of the most recent financial statements referred to in Schedule 5.5.
4.10 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 reasonably satisfactory to you and your
special counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
4.11 Delivery of Company and Issuer Documents.
On or before the date of the Closing, the Company and the Issuer shall
have delivered to you and your special counsel each, unless otherwise noted,
dated the date of the Closing:
(a) Certified copies of each of the Company's and the Issuer's
Articles or Certificate of Incorporation, together with a good standing
certificate from the Secretary of State of the State of Delaware and a good
standing certificate from the State of Colorado, each to be dated a recent date
prior to the date of the Closing (which certified copies and good standing
certificates need not be originals);
(b) Copies of each of the Company's and the Issuer's Bylaws,
certified as of the date of the Closing by its corporate secretary or an
assistant secretary;
(c) Resolutions of the Board of Directors of each of the Company and
the Issuer approving and authorizing the execution, delivery and performance of
this Agreement, the Other Agreements and, in the case of the Issuer, the Notes
and any other documents, instruments and certificates required to be executed by
the Company or the Issuer in connection herewith or therewith, and in the case
of the Issuer, approving and authorizing the execution, issuance, sale and
delivery of the Notes, each certified by its corporate secretary or an assistant
secretary as being in full force and effect without modification or amendment;
(d) Signature and incumbency certificates of each of the officers of
the Company and the Issuer executing the documents referred to in item (c)
above, and any other
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documents, instruments and certificates required to be executed by the Company
or the Issuer in connection herewith or therewith; and
(e) Such other documents as you or your special counsel may
reasonably request.
4.12 Conditions to Issuance of Additional Notes.
The obligations of the Additional Purchasers to purchase Additional
Notes pursuant to Section 2.2 shall be subject to the following conditions
precedent, in addition to the conditions specified in the Supplement pursuant to
which such Additional Notes may be issued:
(a) Conditions in Agreements. All conditions precedent set forth in
Sections 4.1 through 4.11 shall have been satisfied with respect to such
Additional Notes (with the applicable Series of such Additional Notes being
deemed substituted for "Series A" in such Sections), with such modifications to
such Sections, if any, as may be set forth in the Supplement with respect to
such Additional Notes.
(b) Compliance Certificate. A duly authorized Senior Financial
Officer of the Company shall execute and deliver to each Additional Purchaser an
Officer's Certificate dated the date of issue of such Series of Additional Notes
stating that such officer has reviewed the provisions of the Agreements
(including any Supplements thereto) and setting forth the information and
computations (in sufficient detail) required in order to establish whether the
Company is in compliance with the requirements of Sections 10.2, 10.3, 10.4 and
10.5 on such date.
(c) Execution and Delivery of Supplement. The Company, the Issuer and
each such Additional Purchaser shall execute and deliver a Supplement
substantially in the form of Exhibit S hereto.
(d) Representations of Additional Purchasers. Each Additional
Purchaser shall have confirmed in the Supplement that the representations set
forth in Section 6 are true and correct with respect to such Additional
Purchaser on and as of the date of issue of the Additional Notes.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE ISSUER.
The Company and the Issuer, jointly and severally, represent and
warrant to you that:
5.1 Organization; Power and Authority.
Each of the Company and the Issuer 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
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to have a Material Adverse Effect. Each of the Company and the Issuer
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,
to execute and deliver this Agreement and the Other Agreements and, in the case
of the Issuer, the Notes and to perform the provisions hereof and thereof.
5.2 Authorization, etc.
This Agreement, the Other Agreements and, in the case of the Issuer,
the Notes, have been duly authorized by all necessary corporate action on the
part of the Company and the Issuer, and this Agreement constitutes, and upon
execution and delivery thereof each Note, in the case of the Issuer, will
constitute, a legal, valid and binding obligation of the Company and the Issuer,
as applicable, enforceable against the Company and the Issuer, as applicable, 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).
5.3 Disclosure.
The Company and the Issuer, through their agent, Banc of America
Securities LLC, has delivered to you and each Other Purchaser a copy of a
Private Placement Memorandum, dated June 1999 (the "Memorandum"), relating to
the transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal properties
of the Company and its Restricted Subsidiaries. Except as disclosed in Schedule
5.3, this Agreement, the Memorandum (other than the sections on the cover page
describing Banc of America Securities LLC), the documents, certificates or other
writings delivered to you by or on behalf of the Company or the Issuer 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. Except as disclosed in the Memorandum or as expressly
described in Schedule 5.3, or in one of the documents, certificates or other
writings identified therein, or in the financial statements listed in Schedule
5.5, since December 31, 1998, there has been no change in the financial
condition, operations, business or properties of the Company or any Restricted
Subsidiary except changes that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect. There is no fact
known to the Company or the Issuer that could reasonably be expected to have a
Material Adverse Effect that has not been set forth herein or in the Memorandum
or in the other documents, certificates and other writings delivered to you by
or on behalf of the Company or the Issuer specifically for use in connection
with the transactions contemplated hereby.
5.4 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, the percentage
of shares of each class of its capital stock or
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similar equity interests outstanding owned by the Company and each other
Subsidiary and whether such Subsidiary is a Restricted Subsidiary or an
Unrestricted Subsidiary, (ii) of the Company's Affiliates, other than
Subsidiaries, and (iii) of the Company's and the Issuer'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 (excluding any directors' qualifying shares or shares held
by other persons as a result of similar types of arrangements) have been validly
issued, are fully paid and nonassessable (except as otherwise disclosed in
Schedule 5.4) 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.
(d) No Subsidiary is a party to, or otherwise subject to, any legal
restriction or any agreement (other than this Agreement, the agreements listed
on Schedule 5.4 and customary limitations imposed by corporate law statutes)
restricting the ability of such Subsidiary to pay dividends out of profits or
make any other similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or similar equity
interests of such Subsidiary.
5.5 Financial Statements.
The Company has delivered, or caused to be 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).
5.6 Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Company and the Issuer
of this Agreement, and in the case of the Issuer, the Notes, will not (i)
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
Restricted Subsidiary under, any Material indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease or any other Material agreement or
instrument to which the Company or any Restricted Subsidiary is bound or by
which the Company or any
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Restricted Subsidiary or any of their respective properties may be bound or
affected, except, in each case, for such breaches, defaults, conflicts or
violations which could not reasonably be expected to have a Material Adverse
Effect, (ii) violate the corporate charter or the by-laws of the Company or any
Restricted Subsidiary, (iii) 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
Restricted Subsidiary or (iv) violate any provision of any statute or other rule
or regulation of any Governmental Authority applicable to the Company or any
Restricted Subsidiary.
5.7 Governmental Authorizations, etc.
Assuming the accuracy of your and the Other Purchasers'
representations and warranties set forth in Section 6, 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 (i) the Company or the Issuer of this Agreement, and (ii) the Issuer of the
Notes, except such as may be required under state securities laws.
5.8 Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions, suits
or proceedings pending or, to the knowledge of the Company, threatened against
or affecting the Company or any Restricted Subsidiary or any property of the
Company or any Restricted Subsidiary in any court or before any arbitrator of
any kind or before or by any Governmental Authority that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Restricted Subsidiary is in default
under any term of any agreement or instrument to which it is a party or by which
it is bound, or any order, judgment, decree or ruling of any court, arbitrator
or Governmental Authority or is in violation of any applicable law, ordinance,
rule or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
5.9 Taxes.
The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown
to be due and payable on such returns and all other taxes and assessments levied
upon them or their properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (i) the amount of which is not
individually or in the aggregate Material or (ii) 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 in accordance with GAAP. The
Federal income tax
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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, 1991.
5.10 Title to Property; Leases.
The Company and its Restricted Subsidiaries have good and sufficient
title to their respective properties which they own that individually or in the
aggregate are Material, including all such properties reflected in the most
recent audited balance sheet referred to in Section 5.5 or purported to have
been acquired by the Company or any Restricted Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in
each case free and clear of Liens prohibited by this Agreement. All leases of
the Company or its Restricted Subsidiaries that individually or in the aggregate
are Material are valid and subsisting and are in full force and effect in all
Material respects.
5.11 Licenses, Permits, etc.
Except as disclosed in Schedule 5.11,
(a) the Company and its Restricted Subsidiaries own or possess all
Material 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 Material conflict with the
rights of others;
(b) to the best knowledge of the Company, no product of the Company
or the Issuer 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 Restricted
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 Restricted
Subsidiaries.
5.12 Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws, except for such
instances of noncompliance as have not resulted in and 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.
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(b) The present value of the aggregate benefit liabilities under each
of the Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities as set forth in the Actuarial Report dated
January 1, 1998, prepared by William M. Mercer, Inc. The term "benefit
liabilities" has the meaning specified in section 4001 of ERISA and the terms
"current value" and "present value" have the respective meanings specified in
section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as of
the last day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Company and its Subsidiaries is not Material or has otherwise
been disclosed in the most recent audited consolidated financial statements of
the Company and its Subsidiaries.
(e) 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, which in either
event could reasonably be expected to result in a Material Adverse Effect. The
representation by the Company in the first sentence of this Section 5.12(e) is
made in reliance upon and subject to the accuracy of your 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 you.
5.13 Private Offering by the Issuer.
Neither the Issuer 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 you, the Other Purchasers and not more than 51 other
Institutional Investors, each of which has been offered the Notes at a private
sale for investment. Neither the Company, the Issuer nor, to the Company's or
the Issuer's knowledge, anyone acting on their 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. The Company and
the Issuer have not retained any Person other than Banc of America Securities
LLC as their agent or otherwise to act on their behalf in connection with the
offer or sale of the Notes.
5.14 Use of Proceeds; Margin Regulations.
The Issuer 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
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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 Issuer in a violation of Regulation X
of said Board (12 CFR 224) or to involve any broker or dealer in a violation of
Regulation T of said Board (12 CFR 220). Margin stock does not constitute more
than 10% of the value of the consolidated assets of the Company and its
Subsidiaries and the Company does not have any present intention that margin
stock will constitute more than 10% of the value of such assets. As used in this
Section, the terms "margin stock" and "purpose of buying or carrying" shall have
the meanings assigned to them in said Regulation U.
5.15 Existing Debt; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth a complete
and correct list of all outstanding Debt of the Company and its Restricted
Subsidiaries as of March 31, 1999, since which date there has been no Material
change in the amounts, interest rates, sinking funds, installment payments or
maturities of the Debt of the Company or its Restricted Subsidiaries, except for
normal fluctuations in the ordinary course of business. Neither the Company nor
any Restricted Subsidiary is in default, and no waiver of default is currently
in effect, in the payment of any principal or interest on any Debt of the
Company or such Restricted Subsidiary, the outstanding principal amount of which
exceeds $5,000,000, and no event or condition exists with respect to any Debt of
the Company or any Restricted Subsidiary, the outstanding principal amount of
which exceeds $5,000,000, 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.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
Restricted Subsidiary has agreed or consented to cause or permit in the future
(upon the happening of a contingency or otherwise) any of its property, whether
now owned or hereafter acquired, to be subject to a Lien not permitted by
Section 10.3.
5.16 Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Issuer 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.
5.17 Status under Certain Statutes.
Neither the Company nor any Restricted Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, the Interstate Commerce Act, as
amended, or the Federal Power Act, as amended.
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5.18 Environmental Matters.
Except as disclosed in the Company's Form 10-K with respect to its
fiscal year ended December 31, 1998 or in its Form 10-Q with respect to the
three months ended March 31, 1999, the Company conducts in the ordinary course
of business a review of the effect of existing Environmental Laws and existing
Environmental Claims on the business, operations and properties of the Company
and its Subsidiaries, and as a result thereof the Company has reasonably
concluded that such Environmental Laws and Environmental Claims would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.19 Year 2000.
The Company and its Restricted Subsidiaries have implemented measures
to have all critical business systems year-2000 compliant in a timely manner,
and the advent of the year 2000 and its impact on such business systems is not
expected to have a Material Adverse Effect.
6. REPRESENTATIONS OF THE PURCHASER.
6.1 Purchase for Investment.
You represent that you are an Institutional Investor and that you are
purchasing the Series A Notes for your own account or for one or more separate
accounts maintained by you or for the account of one or more pension or trust
funds and not with a view to the distribution thereof, provided that the
disposition of your or their property shall at all times be within your or their
control. You understand that the Series A Notes have not been registered under
the Securities Act or under state securities or "Blue Sky" laws and may be
resold only if registered pursuant to the provisions of the Securities Act or
applicable state securities or "Blue Sky" laws 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 Issuer is
not required to register the Series A Notes.
6.2 Source of Funds.
You represent that at least one of the following statements is an
accurate representation as to each source of funds (a "Source") to be used by
you to pay the purchase price of the Notes to be purchased by you 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 ten percent (10%) of
the total reserves and liabilities of such general account (exclusive of
separate account liabilities) plus surplus, as set forth in the NAIC Annual
Statement filed with your 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
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fund, within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as
you have 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 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 I(c) and (g) of the QPAM Exemption
are satisfied, neither the QPAM nor a person controlling or controlled by the
QPAM (applying the definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (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.
7. INFORMATION AS TO COMPANY AND ISSUER.
7.1 Financial and Business Information.
The Company shall deliver, or cause to be delivered, 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
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(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 of the
Company as fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of operations
and cash flows, subject to changes resulting from year-end adjustments,
provided that delivery within the time period specified above of copies of
the Company's Quarterly Report on Form 10-Q prepared in compliance with the
requirements therefor and filed with the Securities and Exchange Commission
shall be deemed to satisfy the requirements of this Section 7.1(a);
(b) Annual Statements -- within 110 days after the end of each fiscal
year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its Subsidiaries, for such
year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP,
and accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state that
such financial statements present fairly, in all material respects, the
financial position of the companies being reported upon and their results
of operations and cash flows and have been prepared in conformity with
GAAP, and that the examination of such accountants in connection with such
financial statements has been made in accordance with generally accepted
auditing standards, and that such audit provides a reasonable basis for
such opinion in the circumstances; provided that the delivery within the
time period specified above of the Company's Annual Report on Form 10-K for
such fiscal year (together with the Company's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the Exchange
Act) prepared in accordance with the requirements therefor and filed with
the Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(b), and
(iii) the Company's proxy statement for such fiscal year.
(c) SEC and Other Reports -- promptly upon their becoming available,
one copy of (i) each financial statement and each report or notice, in each case
containing information of a financial nature, filed by the Company with the
Securities and Exchange Commission (other than reports filed on Forms 3, 4 and 5
as required under Section 16(a) of the Exchange Act and similar immaterial
reports), and (ii) any press release of the Company generally made available
concerning a Material development;
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(d) Notice of Default or Event of Default -- promptly, and in any
event within five Business Days, after a Responsible Officer of the Company or
the Issuer becoming aware (i) of the existence of any Default or Event of
Default, or (ii) that any Person has given any written notice or taken any
action with respect to a claimed default hereunder or that any Person has given
any written 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 and/or the Issuer are
taking or propose to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days,
after a Responsible Officer of the Company 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
Restricted 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;
(g) Additional Reporting Requirement --in the event that Unrestricted
Subsidiaries account for more than 10% of the consolidated total assets of the
Company and its Subsidiaries, or more than 10% of the consolidated revenue of
the Company and its Subsidiaries, then each set of financial information
delivered pursuant to Sections 7.1(a) and (b) shall be accompanied by unaudited
financial statements for all Unrestricted Subsidiaries taken as a group,
together with consolidating statements reflecting eliminations or adjustments
required to
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reconcile such group statements to the consolidated financial statements of the
Company and its Subsidiaries;
(h) Supplements -- in the event that any series of Additional Notes
is issued under Section 2.2, within 10 Business Days after execution and
delivery thereof, a copy of the Supplement executed in connection with such
issuance; and
(i) 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 or the Issuer to perform their respective
obligations hereunder and, in the case of the Issuer, under the Notes as from
time to time may be reasonably requested by any such holder of Notes that is an
Institutional Investor, including without limitation, such information as is
required by Rule 144A under the Securities Act to be delivered to a prospective
transferee of the Notes.
7.2 Officer's Certificate.
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by an
Officer's Certificate from the Company 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 Sections 10.2(c) and (e), 10.3(j) and (l),
10.4 and 10.5 hereof 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 and/or the Issuer shall
have taken or propose to take with respect thereto.
7.3 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 written notice to the
Company, to visit the principal executive office of the Company, to discuss the
affairs, finances and accounts of the Company
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and its Restricted Subsidiaries with the Company's officers, and (with the
consent of the Company, which consent will not be unreasonably withheld) to
visit the other offices and properties of the Company and each Restricted
Subsidiary, all at such reasonable times during normal business hours and as
often as may be reasonably requested in writing; provided, in each case, that
such holder of Notes shall have given the Company's Chief Financial Officer or
Treasurer a reasonable opportunity to participate therein in person or through a
designated representative; and
(b) Default -- if a Default or Event of Default has occurred and is
continuing, at the expense of the Company and the Issuer, jointly and severally,
to visit and inspect any of the offices or properties of the Company or any
Restricted Subsidiary, to examine all their respective books of account,
records, reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
officers and independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and accounts of the
Company and its Restricted Subsidiaries), all at such reasonable times during
normal business hours and as often as may be requested; provided, in each case,
that such holder of Notes shall have given the Company's Chief Financial Officer
or Treasurer a reasonable opportunity to participate therein in person or
through a designated representative.
8. PREPAYMENT OF THE NOTES.
8.1 Required Prepayments.
No regularly scheduled prepayment of principal of the Notes is
required prior to the date of their maturity.
8.2 Optional Prepayments with Make-Whole Amount.
The Issuer may, at its option, upon notice as provided below, prepay
at any time on a Business Day all, or from time to time any part of, the Notes
of any Series or of any Tranche within a Series, in an amount not less than 5%
of the aggregate principal amount of the Notes of such Series or of such
Tranche, as applicable, then outstanding in the case of a partial prepayment, at
100% of the principal amount so prepaid, plus the Make-Whole Amount determined
for the prepayment date with respect to such principal amount. The Issuer will
give each holder of Notes of the Series or Tranche within a Series to be prepaid
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 of such Series or Tranche within a Series 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 of the Issuer as to the estimated
Make-Whole 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 Issuer
shall deliver to each holder of Notes of the Series or Tranche within a Series
to be prepaid a certificate of a Senior Financial Officer of the Issuer
specifying the calculation of such Make-Whole Amount as of the specified
prepayment date.
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8.3 Change in Control.
(a) Notice of Change in Control. The Company will, within 10 days
after any Responsible Officer has knowledge of the occurrence of any Change in
Control, give written notice of such Change in Control to each holder of Notes.
Such notice shall contain and constitute an offer by the Issuer to prepay Notes
as described in subparagraph (b) of this Section and shall be accompanied by the
certificate described in subparagraph (e) of this Section.
(b) Offer to Prepay Notes. The offer to prepay Notes contemplated by
subparagraph (a) of this Section shall be an offer to prepay, in accordance with
and subject to this Section, all, but not less than all, 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 (which shall be a Business Day) specified in such offer (the
"Proposed Prepayment Date"). Such date shall be not less than 30 days and not
more than 35 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
first Business Day after the 30th day after the date of such offer).
(c) Acceptance. A holder of Notes may accept the offer to prepay made
pursuant to this Section by causing a notice of such acceptance to be delivered
to the Issuer not later than 20 days after receipt by such holder of the offer
of prepayment. A failure by a holder of Notes to respond by such date to an
offer to prepay made pursuant to this Section shall be deemed to constitute a
rejection of such offer by such holder.
(d) Prepayment. Prepayment of the Notes to be prepaid pursuant to
this Section shall be at 100% of the principal amount of such Notes, together
with interest on such Notes accrued to the date of prepayment, but without Make-
Whole Amount or other premium. The prepayment shall be made on the Proposed
Prepayment Date.
(e) Officer's Certificate. Each offer to prepay the Notes pursuant to
this Section shall be accompanied by a certificate, executed by a Senior
Financial Officer of the Issuer 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 interest that would be due on each Note offered to be prepaid, accrued to
the Proposed Prepayment Date; (v) that the conditions of this Section have been
fulfilled; and (vi) in reasonable detail, the nature and date of the Change in
Control.
(f) Certain Definitions. A "Change in Control" shall be deemed to
have occurred if:
(i) any person (as such term is used in Section 13(d) and Section
14(d)(2) of the Exchange Act as in effect on the date of the Closing)
or related persons constituting a group (as such term is used in Rule
13d-5 under the Exchange Act), other than the Trust, become the
"beneficial owners" (as such term is used in Rule 13d-3 under the
Exchange Act as in effect on the date of the Closing), directly or
indirectly, of more than 35% of the total voting power of all classes
then outstanding of the Company's voting securities, and
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(ii) the percentage of the voting securities of the Company of which
such person or group of persons is the direct or indirect beneficial
owner exceeds the percentage of the voting securities of which the
Trust is the direct or indirect beneficial owner;
provided, that the right to acquire, directly or indirectly, voting securities
of the Company pursuant to an outstanding option, warrant or similar right
(each, a "Right") shall not constitute the "beneficial ownership" of the voting
securities that are subject to the Right, and such voting securities shall not
be deemed to be beneficially owned by the person or group of persons that holds,
directly or indirectly, the Right, until the Right has been exercised and the
voting securities subject thereto have been acquired, directly or indirectly, by
such person or group of persons.
8.4 Allocation of Partial Prepayments.
In the case of each partial prepayment of any Series (or Tranche
within a Series) of Notes, the principal amount of the Notes of such Series or
Tranche to be prepaid shall be allocated among all of the Notes of the Series or
Tranche to be prepaid at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not theretofore
called for prepayment. All regularly scheduled partial prepayments, if any,
made with respect to any Additional Series of Notes pursuant to any Supplement
shall be allocated as therein provided.
8.5 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 Make-Whole Amount, if
any. From and after such date, unless the Issuer shall fail to pay such
principal amount when so due and payable, together with the interest and Make-
Whole 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
Issuer and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.6 Purchase of Notes.
The Company will not and will not permit any Subsidiary or Affiliate
to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of
the outstanding Notes except (i) upon the payment or prepayment of the Notes in
accordance with the terms of this Agreement (including any Supplement) and the
Notes, or (ii) pursuant to an offer to purchase made by the Issuer or a
Subsidiary or Affiliate pro rata to the holders of all Notes of a Series (or a
Tranche within a Series) at the time outstanding upon the same terms and
conditions, provided that any such offer shall not be for less than par value of
the Notes plus accrued and unpaid interest, and provided further that no Default
or Event of Default shall exist at the time of the offer, or would exist if the
offer is accepted and the Notes subject thereto are so purchased, redeemed,
prepaid or otherwise acquired. The failure by the Issuer or any Subsidiary or
Affiliate to pay a Make-Whole Amount in connection with any such offer shall not
of and by itself be deemed to
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constitute a Default or an Event of Default. The Issuer will promptly cancel all
Notes acquired by it or any Subsidiary or 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.
8.7 Make-Whole Amount.
The term "Make-Whole 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 Make-Whole Amount may in no
event be less than zero. For the purposes of determining the Make-Whole 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 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 (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of
any Note, 0.50% over the yield to maturity implied by (i) the yields
reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the Settlement Date with respect to such Called
Principal, on the display designated as "Page PX1" (or other
appropriate page) of the Bloomberg Financial Markets Services Screen
(or such other display as may replace Page PX1 (or other appropriate
page) on the Bloomberg Financial Markets Services Screen) 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 (ii) 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 (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the duration closest to
and greater than the Remaining Average Life and (2) the actively
traded U.S. Treasury security with the duration closest to and less
than the Remaining Average Life.
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"Remaining Average Life" means, with respect to any Called Principal,
the number of years (calculated to the nearest one-twelfth year)
obtained by dividing (i) such Called Principal into (ii) the sum of
the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) 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 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 has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
9.1 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, 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 and except as such non-
compliance is being contested by the Company or such Subsidiary in good faith or
as to which a bona fide dispute exists.
9.2 Insurance.
The Company will and will cause each of its Restricted Subsidiaries to
maintain, insurance with (i) financially sound and reputable insurers or (ii) a
system of self insurance in accordance with risk management practices, with
respect to their respective properties and businesses against such casualties
and contingencies, of such types, on such terms and in such
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amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities engaged in the same or a similar business and similarly situated.
9.3 Maintenance of Properties.
The Company will and will cause each of its Restricted 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 Restricted 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.
9.4 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
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 nonfiling or nonpayment, as the case may be, of
all such taxes and assessments in the aggregate could not reasonably be expected
to have a Material Adverse Effect.
9.5 Corporate Existence, etc.
The Company will at all times preserve and keep in full force and
effect its corporate existence. Subject to Section 10.2, the Company will at
all times preserve and keep in full force and effect the corporate existence of
each of its Restricted Subsidiaries (unless merged with or into, or transferred
to, the Company or another Restricted Subsidiary) and all rights and franchises
of the Company and its Restricted Subsidiaries necessary or desirable in the
conduct of their business 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, reasonably be expected to have a Material Adverse Effect.
9.6 Execution of Subsidiary Guaranty.
In the event that after the date of Closing any U.S. Subsidiary
becomes a Material Subsidiary or the Company acquires a U.S. Subsidiary which is
a Material Subsidiary, the Company will promptly notify the holders of the Notes
of that fact and will promptly cause each such Material Subsidiary to execute
and deliver to the holders of the Notes a counterpart of the
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Subsidiary Guaranty; provided that the Company shall cause its U.S. Subsidiaries
that are not Material Subsidiaries also to execute and deliver to the holders of
the Notes a counterpart of the Subsidiary Guaranty (and will promptly notify the
holders of the Notes thereof) to the extent necessary to ensure that (i) the
Company's and its Subsidiaries' proportional share of the total assets (after
intercompany eliminations) of all U.S. Subsidiaries that are not Subsidiary
Guarantors (other than the Issuer) does not exceed 20% of the Company's and its
Subsidiaries' proportional share of the total assets (after intercompany
eliminations) of all U.S. Subsidiaries (including the Issuer); and (ii) the
income from continuing operations before income taxes, extraordinary items and
cumulative effect of any change in accounting principles of all U.S.
Subsidiaries that are not Subsidiary Guarantors (other than the Issuer) does not
exceed 20% of such income of all U.S. Subsidiaries (including the Issuer), as of
the end of or for, as the case may be, the then most recently completed fiscal
year of the Company, based upon the annual financial statements for the most
recently completed fiscal year of the Company. The Company shall deliver to the
holders of the Notes, together with such counterpart of the Subsidiary Guaranty,
(i) certified copies of such Subsidiary Guarantor's Articles or Certificate of
Incorporation, together with a good standing certificate from the Secretary of
State of the jurisdiction of its incorporation, each to be dated a recent date
prior to their delivery to the holders of the Notes, (ii) a copy of such
Subsidiary Guarantor's Bylaws, certified by its corporate secretary or an
assistant corporate secretary as of a recent date prior to their delivery to the
holders of the Notes, (iii) a certificate executed by the secretary or an
assistant secretary of such Subsidiary Guarantor as to (a) the incumbency and
signatures of the officers of such Subsidiary Guarantor executing the
counterpart of the Subsidiary Guaranty and (b) the fact that the attached
resolutions of the Board of Directors of such Subsidiary Guarantor authorizing
the execution, delivery and performance of the counterpart of the Subsidiary
Guaranty are in full force and effect and have not been modified or rescinded,
and (iv) a favorable opinion of counsel to Company and such Subsidiary
Guarantor, in form and substance reasonably satisfactory to the Required Holders
and their counsel, as to (a) the due organization and good standing of such
Subsidiary Guarantor, (b) the due authorization, execution and delivery by such
Subsidiary Guarantor of the counterpart of the Subsidiary Guaranty, (c) the
enforceability of the counterpart of the Subsidiary Guaranty, and (d) such other
matters as the Required Holders may reasonably request, all of the foregoing to
be satisfactory in form and substance to the Required Holders and their counsel.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are
outstanding:
10.1 Transactions with Affiliates.
The Company will not and will not permit any Restricted Subsidiary to
enter into directly or indirectly any Material 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 Restricted Subsidiary), except (a)
in the ordinary course and pursuant to the reasonable requirements of the
Company's or such Restricted Subsidiary's business and upon fair and reasonable
terms no less favorable to the Company or such Restricted Subsidiary than would
be obtainable in a comparable arm's-length transaction with a Person not an
Affiliate or, (b) in the case of any Material transaction or
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Material group of related transactions with the Trust, only after a
determination by a majority of the members of the Board of Directors of the
Company who are not trustees of the Trust that such transaction or group of
related transactions is fair and in the best interests of the Company and its
Subsidiaries.
10.2 Merger, Consolidation, Sale of Assets, etc.
(a) The Company will not and will not permit any Restricted Subsidiary
to consolidate with or merge with any other corporation or convey, transfer or
lease substantially all of its assets in a single transaction or series of
transactions to any Person, provided that:
(i) any Restricted Subsidiary may (x) merge or consolidate with
or into, or convey, transfer or lease substantially all of its assets
in a single transaction or series of transactions to, the Company,
another Restricted Subsidiary or, in the case of a consolidation or
merger, any other Person so long as the surviving or continuing
corporation is a Restricted Subsidiary (provided that the Company
and/or its Wholly-Owned Restricted Subsidiaries retain at least the
same ownership interest in the surviving Restricted Subsidiary as it
or they held in the discontinued Restricted Subsidiary) and so long as
in any merger or consolidation involving the Company or the Issuer,
either (1) the Company or the Issuer, as the case may be, shall be the
surviving or continuing corporation or (2) the merger or consolidation
is permitted by clause (ii) of this Section 10.2(a) and (y) convey,
transfer or lease all or substantially all of its assets to any Person
in compliance with the provisions of Section 10.2(b); and
(ii) each of the Company and the Issuer may consolidate or merge
with or into, or convey, transfer or lease substantially all of its
assets to, any other corporation if,
(A) in the case of a consolidation or merger, the surviving
or continuing corporation is the Company or the Issuer, as the case
may be, or
(B) the successor corporation (the "surviving corporation")
which results from such consolidation or merger or the corporation to
which all or substantially all of the Company's or the Issuer's assets
have been conveyed, transferred or leased (x) shall be a solvent
corporation organized and existing under the laws of the United States
of America or any state thereof or the District of Columbia, and (y)
shall have executed and delivered to each holder of the Notes its
assumption of the due and punctual performance and observation of all
of the covenants and other provisions in the Notes, this Agreement and
the Other Agreements to be performed or observed by the Company or the
Issuer, as the case may be, and in the case of the Issuer, the due and
punctual payment of the principal of and premium, if any, and interest
on all of the Notes, according to their tenor, and in the case of the
Company, the due and punctual performance of the Guaranty, and shall
furnish to such holders an opinion of counsel reasonably satisfactory
to the holders of at least 51% in principal amount of the Notes of all
Series, taken collectively, to the effect that the instrument of
assumption has been
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duly authorized, executed and delivered by the surviving corporation
and constitutes the legal, valid and binding agreement of the
surviving corporation, enforceable against the surviving corporation
in accordance with its terms, except as enforcement of such terms may
be limited by bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and
(C) immediately after giving effect to any transaction
described in clauses (A) or (B) above, (x) no Default or Event of
Default would exist, and (y) the surviving entity would be able to
incur at least $1.00 of Debt under Section 10.5.
No such conveyance, transfer or lease of substantially all of the
assets of the Company or the Issuer shall have the effect of releasing the
Company, the Issuer or any successor corporation that shall theretofore have
become such in the manner prescribed in this Section 10.2 from its liability
under this Agreement or, in the case of the Issuer, the Notes.
(b) Subject to Section 10.2(a), the Company will not, and will not
permit any Restricted Subsidiary to, sell, lease (as lessor), transfer, abandon
or otherwise dispose of assets to any Person; provided that the foregoing
restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of
the Company to the Issuer or of the Issuer to the Company or of the
Company or the Issuer to a Wholly-Owned Restricted Subsidiary or of a
Restricted Subsidiary (other than the Issuer) to the Company or
another Restricted Subsidiary;
(ii) the sale in the ordinary course of business of (1)
inventory held for sale, or (2) equipment, fixtures, supplies or
materials no longer required in the operation of the business of the
Company or any of its Restricted Subsidiaries or that is obsolete;
(iii) the sale by the Company or any Restricted Subsidiary of
property and the subsequent lease, as lessee, of the same property,
within 365 days following the acquisition or construction of such
property;
(iv) the sale or other disposition of Permitted Receivables
pursuant to the Permitted Receivables Facility, provided that the
aggregate net uncollected balances of all Permitted Receivables shall
not at any time exceed an aggregate amount equal to 5% of Consolidated
Total Assets determined as of the end of the immediately preceding
fiscal quarter;
(v) the sale of assets for cash or other property to a Person
or Persons (other than an Affiliate) if all of the following
conditions are met:
(1) such assets (valued at net book value) do not
constitute a "substantial part" of the assets of the Company and its
Restricted Subsidiaries;
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(2) in the opinion of a Responsible Officer of the Company,
the sale is for fair value and is in the best interests of the
Company; and
(3) immediately after the consummation of the transaction
and after giving effect thereto, no Default or Event of Default would
exist; or
(vi) the sale of assets meeting the conditions set forth in
clauses (2) and (3) of subparagraph (v) above, as long as the proceeds
from such sale in excess of a substantial part of the assets of the
Company and its Restricted Subsidiaries are (i) applied within 365
days of the date of sale of such assets to the acquisition of fixed
assets or other property useful and intended to be used in the
operation of the business of the Company or its Restricted
Subsidiaries, and/or (ii) used to repay any Debt of the Company or its
Restricted Subsidiaries (other than Subordinated Debt, Debt owing to
the Company, any of its Subsidiaries or any Affiliate and Debt in
respect of any revolving credit or similar credit facility providing
the Company or any of its Restricted Subsidiaries with the right to
obtain loans or other extensions of credit from time to time, except
to the extent that in connection with such payment of Debt the
availability of credit under such credit facility is permanently
reduced by an amount not less than the amount of such proceeds applied
to the payment of such Debt).
(c) For purposes of Section 10.2(b), a sale of assets will be deemed
to involve a "substantial part" of the assets of the Company and its Restricted
Subsidiaries if the book value of such assets, together with all other assets
sold during the immediately preceding 12-calendar month period (except those
assets sold pursuant to clauses (i) or (ii) of Section 10.2(b)) exceeds 15% of
the Consolidated Total Assets determined as of the end of the immediately
preceding fiscal year.
(d) The Company will not permit any Restricted Subsidiary to issue or
sell any of its stock (or any options or warrants to purchase stock or other
Securities exchangeable for or convertible into stock) except to the Company or
a Wholly-Owned Restricted Subsidiary and except to another Person in connection
with the establishment by the Company or any of its Restricted Subsidiaries of a
Joint Venture with such Person.
(e) The Company will not, and will not permit any Restricted
Subsidiary to, sell, transfer or otherwise dispose of its interest in any stock
(or any options or warrants to purchase stock or other Securities exchangeable
for or convertible into stock) of any Restricted Subsidiary (except to the
Company or a Wholly-Owned Restricted Subsidiary) unless such sale, transfer or
disposition would be permitted under Section 10.2(b).
10.3 Liens.
The Company will not and will not permit any of its Restricted
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 Restricted Subsidiary, whether now owned or hereafter acquired, or any
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income or profits therefrom, or assign or otherwise convey any right to receive
income or profits (unless it 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 any equitable
Lien on such property), except for the following (which are collectively
referred to as "Permitted Liens"):
(a) Liens for taxes, assessments or other governmental levies or
charges the payment of which is not at the time required by Section 9.4;
(b) Liens incidental to the conduct of business or the ownership of
properties and assets (including landlords', carriers', warehousemen's,
mechanics' materialmen's and other similar Liens) and Liens to secure the
performance of bids, tenders, leases, or trade contracts, or to secure statutory
obligations (including obligations under workers compensation, unemployment
insurance and other social security legislation), surety or appeal bonds or
other Liens incurred in the ordinary course of business and not in connection
with the borrowing of money;
(c) Liens resulting from judgments, provided that (i) no Event of
Default exists under Section 11(i) with respect to the judgment giving rise
thereto, and (ii) no foreclosure or other enforcement proceedings have been
commenced with respect thereto (unless effectively stayed);
(d) Liens securing Debt of a Restricted Subsidiary to the Company or
to another Restricted Subsidiary, including Liens granted in connection with
industrial development authority financing where the bonds issued by such
development authority on behalf of a Restricted Subsidiary are purchased by the
Company or another Restricted Subsidiary;
(e) Liens in existence at Closing and reflected in Schedule 10.3
hereto;
(f) minor survey exceptions and the like which do not Materially
detract from the value of such property;
(g) leases, subleases, easements, rights-of-way, restrictions and
other similar charges or encumbrances incidental to the ownership of property or
assets or the ordinary conduct of the Company or any of its Restricted
Subsidiaries' businesses, provided that the aggregate of such Liens do not
Materially detract from the value of such property;
(h) Liens (i) existing on property at the time of its acquisition or
construction by the Company or a Restricted Subsidiary and not created in
contemplation thereof; (ii) on property created contemporaneously with its
acquisition or within 365 days of the acquisition or completion or construction
or improvement thereof to secure the purchase price or cost of construction or
improvement thereof; or (iii) existing on property of a Person at the time such
Person is consolidated with or merged with the Company or a Restricted
Subsidiary and not created in contemplation thereof; provided that such Liens
shall attach solely to the property acquired or constructed and the principal
amount of the Debt secured by the Lien shall not exceed the lesser of the cost
of acquisition or construction or fair market value of such property
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(as determined in good faith by one or more officers of the Company or a
Restricted Subsidiary to whom authority to enter into the transaction has been
delegated by the board of directors of the Company or such Restricted
Subsidiary);
(i) any Liens renewing, extending or replacing Liens permitted by
Sections 10.3(d), (e), (h) and (i), provided that (i) the principal amount of
the Debt secured is not increased or the maturity thereof reduced, (ii) such
Lien is not extended to any other property, and (iii) immediately after such
extension, or refunding, no Default or Event of Default would exist;
(j) Liens on Permitted Receivables (and any related property that
would ordinarily be subjected to a Lien in connection with the Permitted
Receivables Facility, such as proceeds of Permitted Receivables and records
pertaining to Permitted Receivables) pursuant to the Permitted Receivables
Facility, so long as the Company remains, after the granting of such Liens, in
compliance with Section 10.2(b)(iv);
(k) customary Liens granted in connection with documentary letters of
credit, provided that such Liens are limited to the goods and documents covered
by such letters of credit and proceeds thereof; and
(l) in addition to the Liens permitted pursuant to paragraphs (a)
through (k) of this Section 10.3, any other Liens securing Debt of the Company
or any Restricted Subsidiary, provided that the aggregate amount of such Debt
shall not exceed an amount equal to 10% of Consolidated Total Capitalization as
of the then most recently ended fiscal quarter of the Company.
10.4 Minimum Consolidated Net Worth.
The Company will not permit Consolidated Net Worth to be at any time
less than (a) the sum of (i) $550,000,000 plus (ii) an aggregate amount equal to
25% of Consolidated Net Income (but only if a positive number) for the period
beginning on January 1, 1999 and ending at the end of the then most recently
completed fiscal quarter of the Company, minus (b) the amount of Trust Tax
Benefits for such period.
10.5 Limitation on Consolidated Debt.
The Company will not permit, as of the end of each fiscal quarter of
the Company, the ratio of (i) Consolidated Debt as at the end of such fiscal
quarter to (ii) Consolidated Operating Cash Flow for the period consisting of
such fiscal quarter and the immediately preceding three-fiscal-quarter period,
to exceed 3.50 to 1.0; provided that if the Company or a Restricted Subsidiary
has acquired productive properties during such fiscal quarter or the immediately
preceding three-fiscal-quarter period, for purposes of this Section 10.5,
Consolidated Operating Cash Flow shall be adjusted on a pro forma basis to
include the operating cash flow of such acquired properties for the period of up
to three fiscal quarters ended prior to the fiscal quarter during which such
properties were acquired by the Company or such Restricted Subsidiary.
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10.6 Nature of Business.
Neither the Company nor any Restricted Subsidiary will engage in any
new or additional business if, as a result, the general nature of the business
of the Company and its Restricted Subsidiaries, taken on a consolidated basis,
which would then be engaged in by the Company and its Restricted Subsidiaries
would be substantially changed from the general nature of the business engaged
in by the Company and its Restricted Subsidiaries, taken on a consolidated
basis, on the date of the Closing, plus extensions and expansions thereof and
business activities incidental or related thereto.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions
or events shall occur and be continuing:
(a) the Issuer defaults in the payment of any principal or Make-Whole
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 Issuer 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 Issuer defaults in the performance of or
compliance with any term contained in Section 8.3, or the Company defaults in
the performance of or compliance with any term contained in Sections 9.6 or 10.1
through 10.6 other than Section 10.3(c); or
(d) the Company or the Issuer defaults in the performance 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 30 days after the earlier of (i) a Responsible Officer of the Company or
the Issuer obtaining actual knowledge of such default and (ii) the Company or
the Issuer 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, the Issuer or any Subsidiary Guarantor or by any officer of the
Company, the Issuer or any Subsidiary Guarantor in this Agreement, the
Subsidiary Guaranty or in any writing furnished in connection with the
transactions contemplated hereby or thereby proves to have been false or
incorrect in any material respect on the date as of which made, or the Guaranty
or the Subsidiary Guaranty for any reason (other than payment in full of all
obligations under this Agreement, the Notes, the Guaranty or the Subsidiary
Guaranty) shall cease to be in full force and effect, or the Guaranty or the
Subsidiary Guaranty shall be declared in whole or in part to be void or
unenforceable, or the Company or any Subsidiary Guarantor shall default in the
performance of or compliance with any term contained in the Guaranty or the
Subsidiary Guaranty or shall contest the validity or enforceability of the
Guaranty or the Subsidiary Guaranty or deny that it has any further liability
thereunder; or
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(f) (i) the Company or any Material Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of any principal of or
premium or make-whole amount or interest on any Debt that is outstanding in an
aggregate principal amount of at least $25,000,000 beyond any period of grace
provided with respect thereto, or (ii) the Company or any Material Subsidiary is
in default in the performance of or compliance with any term of any evidence of
any Debt in an aggregate outstanding principal amount of at least $25,000,000 or
of any mortgage, indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such default or condition such Debt
has become, or has been declared (or one or more Persons are entitled to declare
such Debt to be), due and payable before its stated maturity or before its
regularly scheduled dates of payment, or (iii) as a consequence of the
occurrence or continuation of any event or condition (other than the passage of
time or the right of the holder of Debt (other than Debt with respect to the
Notes) to convert such Debt into equity interests), (x) the Company or any
Material Subsidiary has become obligated to purchase or repay Debt (other than
Debt with respect to the Notes) before its regular maturity or before its
regularly scheduled dates of payment in an aggregate outstanding principal
amount of at least $25,000,000, or (y) one or more Persons have the right to
require the Company or any Material Subsidiary so to purchase or repay such
Debt; or
(g) the Company or any Material 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
Material 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
Material Subsidiaries, or any such petition shall be filed against the Company
or any of its Material Subsidiaries and such petition shall not be dismissed
within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of $15,000,000 are rendered against one or more of the
Company and its Material Subsidiaries and which judgments are not, within 60
days after entry thereof, bonded, discharged or stayed pending appeal, or are
not discharged within 60 days after the expiration of such stay; or
(j) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a waiver of
such standards or extension of any amortization period is sought or granted
under section 412 of the Code, (ii) a notice of
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intent to terminate any Plan shall have been or is reasonably expected to be
filed with the PBGC or the PBGC shall have instituted proceedings under ERISA
section 4042 to terminate or appoint a trustee to administer any Plan or the
PBGC shall have notified the Company or any ERISA Affiliate that a Plan may
become a subject of any such proceedings, (iii) as of the most recent valuation
date for any Plan, the excess of (1) the actuarial present value (determined on
the basis of reasonable assumptions employed by the independent actuary for such
Plan for purposes of Section 412 of the Code or Section 302 of ERISA) of benefit
liabilities (as defined in Section 4001(a)(16) of ERISA) over (2) the fair
market value of the assets of such Plan, individually or in the aggregate for
all Plans (excluding for purposes of such computation any Plans with respect to
which assets exceed benefit liabilities), shall exceed $25,000,000, (iv) the
Company or any ERISA Affiliate shall have incurred or is reasonably expected to
incur 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, (v) the Company
or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the
Company or any Subsidiary establishes or amends any employee welfare benefit
plan that provides post-employment welfare benefits in a manner that would
increase the liability of the Company or any Subsidiary thereunder; and any such
event or events described in clauses (i) through (vi) above, either individually
or together with any other such event or events, could reasonably be expected to
have a Material Adverse Effect.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in Section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1 Acceleration.
(a) If an Event of Default with respect to the Company or the Issuer
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.
(b) If any other Event of Default has occurred and is continuing with
respect to one or more Series of Notes, the Required Holders may at any time at
their option, by notice or notices to the Issuer, declare all the Notes of the
applicable Series then outstanding to be immediately due and payable.
(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 of any
Series 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 Issuer, 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 Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by applicable law), shall
all be immediately due and payable, in each and every case without
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presentment, demand, protest or further notice, all of which are hereby waived.
The Issuer 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 Issuer (except as herein specifically provided for) and that the
provision for payment of a Make-Whole Amount by the Issuer 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.
12.2 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.
12.3 Rescission.
At any time after any Notes of one or more Series have been declared
due and payable pursuant to clause (b) or (c) of Section 12.1, the holders of
more than 50% in principal amount of the Notes of the applicable Series then
outstanding, by written notice to the Issuer, may rescind and annul any such
declaration and its consequences if (a) the Issuer has paid all overdue interest
on the Notes of the applicable Series, all principal of and Make-Whole Amount,
if any, on any Notes of the applicable Series that are due and payable and are
unpaid other than by reason of such declaration, and all interest on such
overdue principal and Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue interest in respect of the Notes of the applicable
Series, 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 of the applicable Series. 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.
12.4 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 and the Issuer under
Section 15, the Company and the Issuer, jointly and severally, agree to 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.
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13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1 Registration of Notes.
The Issuer 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 Issuer shall not be affected
by any notice or knowledge to the contrary. The Issuer 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.
13.2 Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the
Issuer 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 Issuer shall
execute and deliver, at the Issuer'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-A-1 or 1-
A-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 Issuer 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 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.
13.3 Replacement of Notes.
Upon receipt by the Issuer 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 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,
34
<PAGE>
the Issuer 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.
14. PAYMENTS ON NOTES.
14.1 Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount, if
any, and interest becoming due and payable on the Notes shall be made in Denver,
Colorado at the principal office of the Issuer in such jurisdiction. The Issuer
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 Issuer in such jurisdiction or the principal office of a bank or
trust company in such jurisdiction.
14.2 Home Office Payment.
So long as you or your nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Issuer will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below your name in Schedule A, or by such other
method or at such other address as you shall have from time to time specified to
the Issuer 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 Issuer made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Issuer at its
principal executive office or at the place of payment most recently designated
by the Issuer pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by you or your nominee you will, at your 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 Issuer in exchange
for a new Note or Notes pursuant to Section 13.2. The Issuer 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 you under this Agreement and
that has made the same agreement relating to such Note as you have made in this
Section 14.2.
15. EXPENSES, ETC.
15.1 Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated,
the Company and the Issuer, jointly and severally, agree to pay all costs and
expenses (including reasonable attorneys' fees of a special counsel and, if
reasonably required, local or other counsel) incurred by you, each Additional
Purchaser and each Other 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, the Subsidiary Guaranty or the Notes (whether or
not such amendment, waiver or consent becomes effective), including, without
limitation: (a) the costs and expenses incurred in enforcing or defending (or
determining whether or how to enforce or
35
<PAGE>
defend) any rights under this Agreement, the Subsidiary Guaranty or the Notes or
in responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, the Subsidiary Guaranty or the
Notes, or by reason of being a holder of any Note, and (b) 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 and the Issuer, jointly and severally, agree to pay, and will
save you 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 you).
15.2 Survival.
The obligations of the Company and the Issuer under this Section 15
will survive the payment or transfer of any Note, the enforcement, amendment or
waiver of any provision of this Agreement, any Supplement or the Notes, and the
termination of this Agreement or any Supplement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein or in any
Supplement shall survive the execution and delivery of this Agreement, such
Supplement and the Notes, the purchase or transfer by you or any Additional
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 you or any Additional
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 or the
Issuer pursuant to this Agreement or any Supplement shall be deemed
representations and warranties of the Company and the Issuer under this
Agreement. Subject to the preceding sentence, this Agreement (including every
Supplement) and the Notes embody the entire agreement and understanding between
you, the Other Purchasers, the Additional Purchasers, the Company and the Issuer
and supersede all prior agreements and understandings relating to the subject
matter hereof.
17. AMENDMENT AND WAIVER.
17.1 Requirements.
(a) Requirements. This Agreement, any Supplement hereto, the
Subsidiary Guaranty, if any, and the Notes of any Series may be amended, and the
observance of any term hereof or of any Supplement or of the Notes of any Series
may be waived (either retroactively or prospectively), with (and only with) the
written consent of the Company, the Issuer and the Required Holders of each
Series as to which such amendment or waiver is applicable, except that (a) no
amendment or waiver of any of the 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 you
unless consented to by you in writing, and (b) no such amendment or waiver may,
without the 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
36
<PAGE>
of principal of, or reduce the rate or change the time of payment or method of
computation of interest or of the Make-Whole Amount on, the Notes of such
Series, (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 Sections 8, 11(a), 11(b), 12, 17, 20 or 22.
(b) Supplements. Notwithstanding anything to the contrary contained
herein, the Company and the Issuer may enter into any Supplement providing for
the issuance of one or more Series of Additional Notes pursuant to and in
compliance with Sections 2.2 and 4.12 hereof without obtaining the consent of
any holder of any Notes of any other Series.
17.2 Solicitation of Holders of Notes.
(a) Solicitation. The Company or the Issuer will provide each holder
of 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 or the Issuer 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 of the
applicable Series promptly following the date on which it is executed and
delivered by, or receives the consent or approval of, the requisite holders of
Notes of the applicable Series.
(b) Payment. Neither the Company nor the Issuer will directly or
indirectly pay or 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 of the
applicable Series then outstanding even if such holder did not consent to such
waiver or amendment.
17.3 Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes of the applicable Series and is binding
upon them and upon each future holder of any such Note of that Series and upon
the Company and the Issuer 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, the Issuer 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.
17.4 Notes held by Issuer, 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
37
<PAGE>
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 Subsidiaries or Affiliates shall be deemed not to
be outstanding.
18. 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:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Issuer in writing,
(ii) if to any Additional Purchaser or its nominee, to such
Additional Purchaser or nominee at the address specified for such
communications in the applicable Supplement, or at such other address
that such Additional Purchaser or nominee shall have specified to the
Issuer in writing,
(iii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the Company
or the Issuer in writing, or
(iv) if to the Company or the Issuer, to the Company or the
Issuer at the address set forth at the beginning hereof to the attention of
the Treasurer and the General Counsel, or at such other address as the
Company or the Issuer shall have specified to the holder of each Note in
writing.
Notices under this Section 18 will be deemed given only when actually received.
19. 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 you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. Each
of the Company and the Issuer 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 you 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, the Issuer 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.
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<PAGE>
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to you 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 you 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 you prior
to the time of such disclosure, (b) subsequently becomes publicly known through
no act or omission by you or any person acting on your behalf, (c) otherwise
becomes known to you other than through disclosure by the Company or any
Subsidiary or (d) constitutes financial statements delivered to or acquired by
you under Section 7.1 that are otherwise publicly available. You agree that the
Confidential Information will be used solely in connection with the
administration of your investment in the Notes or in connection with the sale of
your Notes to another Institutional Investor who agrees to be bound by the
provisions hereof, and that you will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by you in good
faith to protect confidential information of third parties delivered to you,
provided that you may deliver or disclose Confidential Information to (i) your
directors, trustees, officers, employees, agents, attorneys and affiliates (to
the extent such disclosure reasonably relates to the administration of the
investment represented by your Notes), (ii) your 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 holder of any Note, (iv) any Institutional Investor to which you sell
or offer 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) any Person
from which you offer 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) any federal or state
regulatory authority having jurisdiction over you, (vii) the National
Association of Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to information about
your investment portfolio or (viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (w) to effect compliance with any
law, rule, regulation or order applicable to you, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation to which
you are a party or (z) if an Event of Default has occurred and is continuing, to
the extent you 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 your Notes and this Agreement; provided that unless
specifically prohibited by applicable law or court order, you will use
reasonable efforts to promptly notify the Company of any request or demand to
disclose Confidential Information pursuant to clauses (viii)(x) or (viii)(y) and
otherwise reasonably cooperate with the Company (at the Company's expense), so
that the Company may seek an appropriate protective order. 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 or the Issuer 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 and the Issuer embodying
the provisions of this Section 20.
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21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as
the purchaser of the Notes that you have agreed to purchase hereunder, by
written notice to the Issuer, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 21), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Issuer of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
22. GUARANTY.
In order to induce the Purchasers and any Additional Purchasers to
enter into this Agreement and to purchase the Notes hereunder, the Company
agrees as follows:
22.1 Guaranty.
In consideration of the Purchasers and any Additional Purchasers
agreeing to enter into this Agreement and to purchase the Notes hereunder, the
Company hereby unconditionally and irrevocably guaranties, as primary obligor
and not merely as a surety, the due and punctual payment when due (whether by
required prepayment, declaration, demand or otherwise) (including amounts that
would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. (S)362(a)) of all obligations of the
Issuer under this Agreement and the Notes with respect to the payment of all
principal outstanding under the Notes, all accrued interest thereon, any Make-
Whole Amount that may become due and payable in relation to any Note, all
amounts payable by the Issuer with respect to expense reimbursement or
indemnification hereunder, and all other amounts that may become due and payable
by the Issuer hereunder (including, without limitation, interest which, but for
the filing of a petition in bankruptcy with respect to the Issuer, would accrue
on such obligations at the rate specified in this Agreement and the Notes). All
such obligations of the Issuer are referred to herein as the "Guaranteed
Obligations." For purposes of this Section 22, the obligations of the Company
under this Section 22 are referred to as this "Guaranty."
22.2 Terms of Guaranty.
(a) The Company agrees that the Guaranteed Obligations may be
extended or renewed without notice or further assent from it, and that it will
remain bound upon this Guaranty notwithstanding any extension, renewal or other
alteration of any such Guaranteed Obligation.
(b) The Company waives presentation of, demand of, payment from and
protest of any Guaranteed Obligation and also waives notice of protest for
nonpayment. The
40
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obligations of the Company under this Guaranty shall not be affected by, and the
Company hereby waives its rights (to the extent permitted by law) in connection
with:
(i) the failure of any holder of the Notes to assert any
claim or demand or to enforce any right or remedy against the Issuer
under the provisions of this Agreement or otherwise;
(ii) any extension or renewal of any provision thereof;
(iii) any rescission, waiver, amendment or modification of any
of the terms or provisions of this Agreement or any instrument
executed pursuant hereto;
(iv) the failure of any holder of the Notes to exercise any
right or remedy against any other guarantor of the Guaranteed
Obligations;
(v) any holder of the Notes taking and holding security or
collateral for the payment of this Guaranty or requesting and
accepting any other guaranties of the Guaranteed Obligations, and
exchanging, enforcing, waiving and releasing any such security or
collateral;
(vi) any holder of the Notes applying any such security or
collateral and directing the order or manner of sale thereof as such
Person in its discretion may determine; or
(vii) any holder of the Notes settling, releasing,
compromising, collecting or otherwise liquidating the Guaranteed
Obligations and any security or collateral therefor in any manner
determined by such holder of the Notes.
(c) The Company further agrees that this Guaranty constitutes a
guaranty of payment when due and not of collection and waives any right to
require that any resort be had by any holder of the Notes or any other Person,
to any security held for payment of the Guaranteed Obligations or to any balance
of any deposit account or credit on the books of any holder of the Notes or any
other Person in favor of the Issuer or any other Person.
(d) The obligations of the Company under this Guaranty shall not be
subject to any reduction, limitation, impairment or termination for any reason
(other than payment in full of the Guaranteed Obligations), including, without
limitation, any claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations, discharge of the Issuer from the
Guaranteed Obligations in a bankruptcy or similar proceeding or otherwise.
Without limiting the generality of the foregoing, the obligations of the Company
under this Guaranty shall not be discharged or impaired or otherwise affected by
the failure of any holder of the Notes to assert any claim or demand or to
enforce any remedy under this Agreement, the Notes or any other agreement, by
any waiver or modification of any provision thereof, by any default, failure or
delay, willful or otherwise, in the performance of the Guaranteed Obligations,
or by any other act or thing or omission or delay to do any other act or thing
that may or might in any manner or to any extent
41
<PAGE>
vary the risk of the Company or would otherwise operate as a discharge of the
Company as a matter of law or equity.
(e) The Company further agrees that this Guaranty shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any holder of a Note upon the
bankruptcy or reorganization of the Issuer or otherwise.
(f) The Company further agrees, in furtherance of the foregoing and
not in limitation of any other right that any holder of the Notes may have at
law or in equity against the Company by virtue hereof, upon the failure of the
Issuer to pay any of the Guaranteed Obligations when and as the same shall
become due (whether by required prepayment, declaration, demand or otherwise),
the Company will upon demand pay, or cause to be paid, in cash, to the holder of
the Notes an amount equal to the sum of the unpaid principal amount of such
Guaranteed Obligations then due together with accrued and unpaid interest, Make-
Whole Amounts, if any and all other unpaid Guaranteed Obligations of the Issuer
then due to any holder of the Notes.
(g) Until such time as the Guaranteed Obligations have been paid in
full, the Company shall withhold the exercise of any right of subrogation,
contribution, indemnity or otherwise against the Issuer that may arise out of or
be caused by this Guaranty, all rights and/or claims against the Issuer which
may arise against the Issuer by reason of this Guaranty, any right to enforce
any remedy that any holder of the Notes now has or may hereafter have in respect
of the Guaranteed Obligations against the Issuer and any benefit of, and any
right to participate in, any security now or hereafter held by any holder of the
Notes.
23. MISCELLANEOUS.
23.1 Successors and Assigns.
All covenants and other agreements contained in this Agreement
(including any Supplement) 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.
23.2 Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary notwithstanding,
any payment of principal of or Make-whole 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.
23.3 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
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<PAGE>
or unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other
jurisdiction.
23.4 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.
23.5 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.
23.6 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.
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<PAGE>
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Issuer, whereupon the foregoing shall become a binding agreement between you,
the Company and the Issuer.
Very truly yours,
JOHNS MANVILLE INTERNATIONAL, INC.
By /s/ Dion Persson
------------------------------------------
Name: Dion Persson
Title: Vice President, Assistant General
Counsel and Secretary
JOHNS MANVILLE CORPORATION
By /s/ Dion Persson
------------------------------------------
Name: Dion Persson
Title: Vice President, Assistant General
Counsel and Secretary
S-1
<PAGE>
The foregoing is hereby
agreed to as of the
date thereof.
THE TRAVELERS INSURANCE COMPANY
By /s/ Robert M. Mills
-----------------------------------------
Name: Robert M. Mills
Title: Investment Officer
THE TRAVELERS LIFE AND ANNUITY COMPANY
By /s/ Robert M. Mills
-----------------------------------------
Name: Robert M. Mills
Title: Investment Officer
BERKSHIRE LIFE INSURANCE COMPANY
By /s/ David F. O'Clair
-----------------------------------------
Name: David F. O'Clair
Title: Vice President - Securities
UNITED OF OMAHA LIFE INSURANCE COMPANY
By /s/ Edwin H. Garrison, Jr.
-----------------------------------------
Name: Edwin H. Garrison, Jr.
Title: First Vice President
MODERN WOODMEN OF AMERICA
By /s/ Clyde C. Schoeck
-----------------------------------------
Name: Clyde C. Schoeck
Title: President
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By /s/ Richard A. Strait
-----------------------------------------
Name: Richard A. Strait
Title: Its Authorized Representative
S-2
<PAGE>
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management, LLC, a Delaware
limited liability company, its authorized
signatory
By /s/ Jon C. Heiny
-----------------------------------------
Name: Jon C. Heiny
Title:
By /s/ James C. Fifield
-----------------------------------------
Name: James C. Fifield
Title:
PRINCIPAL LIFE INSURANCE COMPANY, ON BEHALF OF ONE
OR MORE SEPARATE ACCOUNTS
By: Principal Capital Management, LLC, a Delaware
limited liability company, its authorized
signatory
By /s/ Jon C. Heiny
-----------------------------------------
Name: Jon C. Heiny
Title:
By /s/ James C. Fifield
-----------------------------------------
Name: James C. Fifield
Title:
COMMERCIAL UNION LIFE INSURANCE COMPANY OF AMERICA,
a Delaware corporation, by its attorney in fact,
Principal Life Insurance Company, an Iowa
corporation
By /s/ Jon C. Heiny
-----------------------------------------
Name: Jon C. Heiny
Title:
By /s/ James C. Fifield
-----------------------------------------
Name: James C. Fifield
Title:
S-2
<PAGE>
KEYPORT LIFE INSURANCE COMPANY
By /s/ Richard Hegwood
---------------------------------------------
Name: Richard Hegwood
Title: Senior Vice President
KEMPER INVESTORS LIFE INSURANCE COMPANY
By /s/ Frederick L. Blackmon
---------------------------------------------
Name: Frederick L. Blackmon
Title: Chief Financial Officer
By /s/ Gary W. Fridley
---------------------------------------------
Name: Gary W. Fridley
Title: Chief Investment Officer
FEDERAL KEMPER LIFE ASSURANCE COMPANY
By /s/ Frederick L. Blackmon
---------------------------------------------
Name: Frederick L. Blackmon
Title: Chief Financial Officer
By /s/ Gary W. Fridley
---------------------------------------------
Name: Gary W. Fridley
Title: Chief Investment Officer
FIDELITY LIFE ASSOCIATION
By /s/ Frederick L. Blackmon
---------------------------------------------
Name: Frederick L. Blackmon
Title: Chief Financial Officer
By /s/ Gary W. Fridley
---------------------------------------------
Name: Gary W. Fridley
Title: Chief Investment Officer
S-2
<PAGE>
ZURICH LIFE INSURANCE COMPANY OF AMERICA
By /s/ Frederick L. Blackmon
---------------------------------------------
Name: Frederick L. Blackmon
Title: Chief Financial Officer
By /s/ Gary W. Fridley
---------------------------------------------
Name: Gary W. Fridley
Title: Chief Investment Officer
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Mark W. Poeppelman
---------------------------------------------
Name: Mark W. Poeppelman
Title: Authorized Signatory
NATIONWIDE INDEMNITY COMPANY
By /s/ Mark W. Poeppelman
---------------------------------------------
Name: Mark W. Poeppelman
Title: Authorized Signatory
AMCO INSURANCE COMPANY
By /s/ Mark W. Poeppelman
---------------------------------------------
Name: Mark W. Poeppelman
Title: Authorized Signatory
COLONIAL PENN INSURANCE COMPANY
By /s/ Morian C. Mooers
---------------------------------------------
Name: Morian C. Mooers
Title: Investment Officer
COLONIAL PENN FRANKLIN INSURANCE COMPANY
By /s/ Morian C. Mooers
---------------------------------------------
Name: Morian C. Mooers
Title: Investment Officer
S-3
<PAGE>
COLONIAL PENN MADISON INSURANCE COMPANY
By /s/ Morian C. Mooers
-------------------------------------------
Name: Morian C. Mooers
Title: Investment Officer
FIRST COLONY LIFE INSURANCE COMPANY
By /s/ Morian C. Mooers
-------------------------------------------
Name: Morian C. Mooers
Title: Assistant Vice President and
Investment Officer
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By /s/ Morian C. Mooers
-------------------------------------------
Name: Morian C. Mooers
Title: Investment Officer
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By /s/ Raymond J. Gency
-------------------------------------------
Name: Raymond J. Gency
Title:
NEW YORK INSURANCE COMPANY
By /s/ S. Thomas Knoff
-------------------------------------------
Name: S. Thomas Knoff
Title: Investment Manager
THE PENN MUTUAL LIFE INSURANCE COMPANY
By /s/ Todd M. Fox
-------------------------------------------
Name: Todd M. Fox
Title: Senior Investment Analyst
S-2
<PAGE>
THE PENN INSURANCE AND ANNUITY COMPANY
By /s/ Todd M. Fox
----------------------------------------
Name: Todd M. Fox
Title: Senior Investment Analyst
THE CANADA LIFE ASSURANCE COMPANY
By /s/ Kevin Phelan
----------------------------------------
Name: Kevin Phelan
Title: Assistant Treasurer
CANADA LIFE INSURANCE COMPANY OF AMERICA
By /s/ Kevin Phelan
----------------------------------------
Name: Kevin Phelan
Title: Assistant Treasurer
CANADA LIFE INSURANCE COMPANY OF NEW YORK
By /s/ Kevin Phelan
----------------------------------------
Name: Kevin Phelan
Title: Assistant Treasurer
TMG LIFE INSURANCE COMPANY
By /s/ Constance L. Keller
----------------------------------------
Name: Constance L. Keller
Title: Director, Private Placements
By /s/ Michael J. Steppe
----------------------------------------
Name: Michael J. Steppe
Title: Senior Vice President
S-2
<PAGE>
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA
By /s/ Loren S. Archibald
-----------------------------------------
Name: Loren S. Archibald
Title: Managing Director Private Placements
S-2
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
The Travelers Insurance Company Tranche 1: $5,000,000
One Tower Square Tranche 2: $6,000,000
Hartford, CT 06183-2030
Attention: Investment Group 9PB
Fax No.: 860-954-5243
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Series A Senior Notes, Tranche 1, due July
7, 2006, PPN 47813# AA2, principal or interest" OR "Johns Manville
International, Inc., 7.92% Series A Senior Notes, Tranche 2, due July 7, 2009,
PPN 47813# AB0, principal or interest," as applicable) to:
The Chase Manhattan Bank, N.A. (ABA #021000021)
One Chase Manhattan Plaza
New York, NY 10004
for credit to: The Travelers Insurance Company
Consolidated Private Placement Account Number 910-2-587434
Notices:
- -------
All notices with respect to payments and written confirmation of each payment,
to be addressed as follows:
The Travelers Insurance Company
One Tower Square
Hartford, CT 06183-2030
Attention: Cashier-10PB
Fax No.: 860-277-2299
<PAGE>
All notices and communications, other than notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
The Travelers Insurance Company
One Tower Square
Hartford, CT 06183-2030
Attention: Investment Group-9PB
Fax No.: 860-954-5243
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
TRAL & CO
Tax ID No.: 06-0566090
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
The Travelers Life and Annuity Company Tranche 2: $4,500,000
One Tower Square
Hartford, CT 06183-2030
Attention: Investment Group-9PB
Fax No.: 860-954-5243
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.92% Series A Senior Notes, Tranche 2, due July
7, 2009, PPN 47813# AB0, principal or interest") to:
The Chase Manhattan Bank, N.A. (ABA #021000021)
One Chase Manhattan Plaza
New York, NY 10004
for credit to: The Travelers Insurance Company
Consolidated Private Placement Account Number 910-2-587434
Notices:
- -------
All notices with respect to payments and written confirmation of each payment,
to be addressed as follows:
The Travelers Insurance Company
One Tower Square
Hartford, CT 06183-2030
Attention: Cashier-10PB
Fax No.: 860-277-2299
<PAGE>
All notices and communications, other than notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
The Travelers Insurance Company
One Tower Square
Hartford, CT 06183-2030
Attention: Investment Group-9PB
Fax No.: 860-954-5243
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
TRAL & CO
Tax ID No.: 06-0904249
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Berkshire Life Insurance Company Tranche 2:$1,500,000
700 South Street
Pittsfield, MA 01201
Attn: Securities Department
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.92% Senior Notes, Tranche 2, due July 7, 2009,
PPN 47813# AB0, principal or interest") to:
Berkshire Life Insurance Company
Account Number 002-4-020877
The Chase Manhattan Bank, N.A.
ABA #021000021
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
Berkshire Life Insurance Company
700 South Street
Pittsfield, MA 01201
Attn: Securities Department
Phone No.: 413-499-4321
Fax No.: 413-442-9763
with copies of documentation drafts to:
Ellen I. Whittaker, Senior Investment Officer- Fax: 413-442-9763
Bradley J. Klose, Associate General Counsel- Fax: 413-443-9397
Tax ID No.: 04-1083480
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
United of Omaha Life Insurance Company Tranche 1:$8,000,000
4- Investment Loan Administration
Mutual of Omaha Plaza
Omaha, NE 68175-1011
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
Chase Manhattan Bank (ABA #021000021)
Private Income Processing
For credit to:
United of Omaha Life Insurance Company, Account #900-9000200
a/c: G07097
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
The Chase Manhattan Bank
4 New York Plaza- 13th Floor
New York, NY 10004
Attn: Income Processing- J. Pipperato
a/c: G07097
All other notices and communications (i.e. Quarterly/Annual Reports, Tax
filings, Modifications, Waivers regarding the indenture) to:
United of Omaha Life Insurance Company
4- Investment Loan Administration
Mutual of Omaha Plaza
Omaha, NE 68175-1011
<PAGE>
Address for Delivery of Bonds:
- -----------------------------
The Chase Manhattan Bank
North America Insurance- 6th Floor
3 Chase Metrotech Center
Brooklyn, NY 11245
Attn: Christine Alonzo
Tax ID No.: 47-1322111
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Modern Woodmen of America Tranche 2:$4,000,000
1701 First Avenue
Rock Island, IL 61201
Attn: Investment Department
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.92% Senior Notes, Tranche 2, due July 7, 2009,
PPN 47813# AB0, principal or interest") to:
The Northern Trust Company
50 South LaSalle St.
Chicago, IL 60675
ABA No. 071-000-152
Account Name: Modern Woodmen of America
Account No.: 84352
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
Modern Woodmen of America
1701 First Avenue
Rock Island, IL 61201
Attn: Investment Accounting Department
All other notices and communications to:
Modern Woodmen of America
1701 First Avenue
Rock Island, IL 61201
Attn: Investment Department
Tax ID No.: 36-1493430
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
The Northwestern Mutual Life Insurance Company Tranche 1: $9,000,000
720 East Wisconsin Avenue Tranche 2: $20,000,000
Milwaukee, WI 53202
Attn: Securities Department
Fax No.: 414-299-7124
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest" OR "Johns Manville International, Inc.,
--
7.92% Senior Notes, Tranche 2, due July 7, 2009, PPN 47813# AB0, principal or
interest," as applicable) to:
Bankers Trust Company (ABA #021-001-033)
16 Wall Street
Insurance Unit- 4th Floor
New York, NY 10005
For the account of: The Northwestern Mutual Life Insurance Company
Account No. 00-000-027
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Investment Operations
Fax No.: 414-299-5714
All other communications shall be delivered to:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Securities Department
Fax No.: 414-299-7124
<PAGE>
Delivery Address for Notes
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Elizabeth J. Lentini
Tax ID No.: 39-0509570
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- --------------------------------------- ----------------------
Principal Life Insurance Company Tranche 2: $22,000,000
c/o Principal Capital Management, LLC $5,000,000
801 Grand Avenue $1,000,000
Des Moines, Iowa 50392-0800
Attn: Investment-Securities
Fax No.: (515) 248-2490
Confirmation No.: (515) 248-3495
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.92% Senior Notes, Tranche 2, due July 7, 2009,
PPN 47813# AB0, principal or interest") to:
ABA No. 073000228
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
For credit to Principal Life Insurance Company
Account No. 0000014752
OBI PFGSE (S) B0062268()JManville
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0960
Attn: Investment Accounting-Securities
Fax No.: (515) 248-2643
Confirmation No.: (515) 247-0689
<PAGE>
All other notices and communications to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0800
Attn: Investment-Securities
Fax No.: (515) 248-2490
Confirmation No.: (515) 248-3495
Delivery Address for Notes
- --------------------------
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
Attn: Jon C. Heiny, Esq.
Tax ID No.: 42-0127290
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Commercial Union Life Insurance Company of America Tranche 1: $1,500,000
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0800
Attn.: Investment Securities- Jon Davidson
Fax No.: (515) 248-2490
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
First Union (Philadelphia)
ABA No. 031201467
1500 Market Street
Philadelphia, PA 19102-2509
Attn: Joe Aman
DDA 5000012398064
For further credit to Account No. 060073-02-4 (Commercial Union Life
Insurance Company of America/Principal)
OBI PFGSE (S) B0062267()JManville
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
Commercial Union Life Insurance Company of America
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0960
Attn.: Investment Accounting- Securities
Fax No.: (515) 248-2643
Confirmation No.: (515) 247-0689
<PAGE>
All other notices and communication to:
Commercial Union Life Insurance Company of America
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0800
Attn.: Investment Securities- Jon Davidson
Fax No.: (515) 248-2490
Confirmation No.: (515) 248-3495
Delivery Address for Notes
- --------------------------
Commercial Union Life Insurance Company of America
c/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
Attn: Jon C. Heiny, Esq.
Tax ID No.: 04-2235236
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Principal Life Insurance Company On Behalf of Tranche 2: $5,000,000
One or More Separate Accounts
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0800
Attn: Investment-Securities
Fax No.: (515) 248-2490
Confirmation No.: (515) 248-3495
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.92% Senior Notes, Tranche 2, due July 7, 2009,
PPN 47813# AB0, principal or interest") to:
ABA No. 073000228
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
For credit to Principal Life Insurance Company
Account No. 0000032395
OBI PFGSE (S) B0062268()JManville
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0960
Attn: Investment Accounting-Securities
Fax No.: (515) 248-2643
Confirmation No.: (515) 247-0689
<PAGE>
All other notices and communication to:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0800
Attn: Investment-Securities
Fax No.: (515) 248-2490
Confirmation No.: (515) 248-3495
Delivery Address for Notes
- --------------------------
Principal Capital Management, LLC
801 GrandAvenue
Des Moines, Iowa 50392-0301
Attn: Jon C. Heiny, Esq.
Tax ID No.: 42-0127290
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Keyport Life Insurance Company Tranche 1:$7,000,000
c/o Stein Roe & Farnham Incorporated
1 South Wacker Drive
Chicago, IL 60606
Attn: Private Placements
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
Federal Reserve Bank of Boston
011001234/ BOS SAFE DEP
DDA 125261
Attn: MBS Income CC: 1253
For: Keyport # KEYF0005002
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
Keyport Life Insurance Company
c/o Stein Roe & Farnham Incorporated
1 South Wacker Drive
Chicago, IL 60606
Attn: Private Placements
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
BOST & CO.
<PAGE>
Delivery Address for Notes:
- ---------------------------
Mellon Securities Trust Co.
120 Broadway, 13th Floor
New York, NY 10271
Reference: A/C KEYF0005002 KEYPORT
Tax ID No.: 05-0302931
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Kemper Investors Life Insurance Company Tranche 1:$5,500,000
c/o Scudder Kemper Investment, Inc.
222 South Riverside Plaza
Chicago, IL 60606-5808
Attn: Private Placements
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
HARE & CO.- Account No. 195279
at The Bank of New York ( ABA No.: 021000018)
BNF
IOC 566
Attention: Security Income Collection
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
Kemper Investors Life Insurance Company
c/o Scudder Kemper Investment, Inc.
222 South Riverside Plaza
Chicago, IL 60606-5808
Attn: Private Placements
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
HARE & CO.
Delivery Address for Notes:
- --------------------------
The Bank of New York
One Wall Street-3rd Floor, Window A
Custody Name: Kemper Investors Life Insurance Company
Custody Account No.: 195279
Tax ID No.: 36-3050975
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Federal Kemper Life Assurance Company Tranche 1:$2,500,000
c/o Scudder Kemper Investment, Inc.
222 South Riverside Plaza
Chicago, IL 60606-5808
Attn: Private Placements
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
HARE & CO.- Account No. 195269
at The Bank of New York ( ABA No.: 021000018)
BNF
IOC 566
Attention: Security Income Collection
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
Federal Kemper Life Assurance Company
c/o Scudder Kemper Investment, Inc.
222 South Riverside Plaza
Chicago, IL 60606-5808
Attn: Private Placements
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
HARE & CO.
Delivery Address for Notes:
- --------------------------
The Bank of New York
One Wall Street-3rd Floor, Window A
Custody Name: Federal Kemper Life Assurance Company
Custody Account No.: 195269
Tax ID No.: 04-6046830
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Fidelity Life Association Tranche 1:$1,000,000
c/o Scudder Kemper Investment, Inc.
222 South Riverside Plaza
Chicago, IL 60606-5808
Attn: Private Placements
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
HARE & CO.- Account No. 195271
at The Bank of New York ( ABA No.: 021000018)
BNF
IOC 566
Attention: Security Income Collection
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
Fidelity Life Association
c/o Scudder Kemper Investment, Inc.
222 South Riverside Plaza
Chicago, IL 60606-5808
Attn: Private Placements
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
HARE & CO.
Delivery Address for Notes:
- --------------------------
The Bank of New York
One Wall Street-3rd Floor, Window A
Custody Name: Fidelity Life Association
Custody Account No.: 195271
Tax ID No.: 36-1068685
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Zurich Life Insurance Company of America Tranche 1:$500,000
c/o Scudder Kemper Investment, Inc.
222 South Riverside Plaza
Chicago, IL 60606-5808
Attn: Private Placements
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
HARE & CO.- Account No. 399609
at The Bank of New York ( ABA No.: 021000018)
BNF
IOC 566
Attention: Security Income Collection
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
Zurich Life Insurance Company of America
c/o Scudder Kemper Investment, Inc.
222 South Riverside Plaza
Chicago, IL 60606-5808
Attn: Private Placements
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
HARE & CO.
Delivery Address for Notes:
- --------------------------
The Bank of New York
One Wall Street-3rd Floor, Window A
Custody Name: Zurich Life Insurance Company of America
Custody Account No.: 399609
Tax ID No.: 36-6071398
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Nationwide Life Insurance Company Tranche 1:$3,000,000
One Nationwide Plaza (1-33-207) Tranche 2:$2,000,000
Columbus, OH 43215-2220
Attn: Corporate Fixed-Income Securities
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest" OR "Johns Manville International, Inc.,
--
7.92% Senior Notes, Tranche 2, due July 7, 2009, PPN 47813# AB0, principal or
interest," as applicable) to:
The Bank of New York (ABA #021-000-018)
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: P & I Department
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
Nationwide Life Insurance Company
c/o The Bank of New York
P.O. Box 19266
Newark NJ 07195
with a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
<PAGE>
All other notices and communication to:
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-207)
Columbus, OH 43215-2220
Attn: Corporate Fixed-Income Securities
Delivery Address for Notes:
- --------------------------
The Bank of New York
One Wall Street
3rd Floor-Window A
New York, NY 10286
F/A/O Nationwide Life Insurance Co. Acct. #267829
Tax ID No.: 31-4156830
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Nationwide Indemnity Company Tranche 1:$4,000,000
One Nationwide Plaza (1-33-207)
Columbus, OH 43215-2220
Attn: Corporate Fixed-Income Securities
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
The Bank of New York (ABA #021-000-018)
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: P & I Department
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
Nationwide Life Insurance Company
c/o The Bank of New York
P.O. Box 19266
Newark NJ 07195
with a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
All other notices and communication to:
Nationwide Indemnity Company
One Nationwide Plaza (1-33-207)
Columbus, OH 43215-2220
Attn: Corporate Fixed-Income Securities
<PAGE>
Delivery Address for Notes:
- --------------------------
The Bank of New York
One Wall Street
3rd Floor-Window A
New York, NY 10286
F/A/O Nationwide Life Insurance Co. Acct. #264234
Tax ID No.: 31-1399201
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
AMCO Insurance Company Tranche 2:$1,000,000
One Nationwide Plaza (1-33-207)
Columbus, OH 43215-2220
Attn: Corporate Fixed-Income Securities
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.92% Senior Notes, Tranche 2, due July 7, 2009,
PPN 47813# AB0, principal or interest") to:
The Bank of New York (ABA #021-000-018)
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: P & I Department
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
Nationwide Life Insurance Company
c/o The Bank of New York
P.O. Box 19266
Newark NJ 07195
with a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
All other notices and communication to:
AMCO Insurance Company
One Nationwide Plaza (1-33-207)
Columbus, OH 43215-2220
Attn: Corporate Fixed-Income Securities
<PAGE>
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
Nationwide Life Insurance Company
Delivery Address for Notes:
- --------------------------
The Bank of New York
One Wall Street
3rd Floor-Window A
New York, NY 10286
F/A/O Nationwide Life Insurance Co. Acct. #000611
Tax ID No.: 42-6054959
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Colonial Penn Insurance Company Tranche 1:$5,000,000
GE Financial Assurance
Two Union Square, 601 Union Street
Seattle, WA 98101
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
Bankers Trust Company
14 Wall Street
New York, NY 10005
SWIFT Code: BKTR US 33
ABA #021001033, Account No.: 99-911-145
FCC# 098592
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
GE Financial Assurance
Account: Colonial Penn Insurance Company
Two Union Square, 601 Union Street
Seattle, WA 98101
Attn: Investment Accounting
Telephone No.: (206) 516-2871
Fax No.: (206) 516-4740
Original note agreement, conformed copy of the note agreement, amendment
requests, financial statements, to be addressed as follows:
Attn: Investment Dept., Private Placements
Telephone No.: (206) 516-4954
Fax No.: (206) 516-4863
<PAGE>
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
SALKELD & CO.
Delivery Address for Notes:
- --------------------------
Bankers Trust Co.
14 Wall Street, 4th Floor
Mail Stop 4042, Window 61
New York, NY 10005
Acct #098592
Attn.: Lorraine Squires (212) 618-2200
Tax ID No.: 23-2044095
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Colonial Penn Franklin Insurance Company Tranche 1:$1,000,000
GE Financial Assurance
Two Union Square, 601 Union Street
Seattle, WA 98101
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
Bankers Trust Company
14 Wall Street
New York, NY 10005
SWIFT Code: BKTR US 33
ABA #021001033, Account No.: 99-911-145
FCC# 098593
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
GE Financial Assurance
Account: Colonial Penn Franklin Insurance Company
Two Union Square, 601 Union Street
Seattle, WA 98101
Attn: Investment Accounting
Telephone No.: (206) 516-2871
Fax No.: (206) 516-4740
Original note agreement, conformed copy of the note agreement, amendment
requests, financial statements, to be addressed as follows:
Attn: Investment Dept., Private Placements
Telephone No.: (206) 516-4954
Fax No.: (206) 516-4863
<PAGE>
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
SALKELD & CO.
Delivery Address for Notes:
- --------------------------
Bankers Trust Co.
14 Wall Street, 4th Floor
Mail Stop 4042, Window 61
New York, NY 10005
Acct #098593
Attn.: Lorraine Squires (212) 618-2200
Tax ID No.: 22-1721971
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Colonial Penn Madison Insurance Company Tranche 1:$1,000,000
GE Financial Assurance
Two Union Square, 601 Union Street
Seattle, WA 98101
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
Bankers Trust Company
14 Wall Street
New York, NY 10005
SWIFT Code: BKTR US 33
ABA #021001033, Account No.: 99-911-145
FCC# 098594
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
GE Financial Assurance
Account: Colonial Penn Madison Insurance Company
Two Union Square, 601 Union Street
Seattle, WA 98101
Attn: Investment Accounting
Telephone No.: (206) 516-2871
Fax No.: (206) 516-4740
Original note agreement, conformed copy of the note agreement, amendment
requests, financial statements, to be addressed as follows:
Attn: Investment Dept., Private Placements
Telephone No.: (206) 516-4954
Fax No.: (206) 516-4863
<PAGE>
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
SALKELD & CO.
Delivery Address for Notes:
- --------------------------
Bankers Trust Co.
14 Wall Street, 4th Floor
Mail Stop 4042, Window 61
New York, NY 10005
Acct #098594
Attn.: Lorraine Squires (212) 618-2200
Tax ID No.: 13-1967524
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
First Colony Life Insurance Company Tranche 2:$4,500,000
GE Financial Assurance
Two Union Square, 601 Union Street
Seattle, WA 98101
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.92% Senior Notes, Tranche 2, due July 7, 2009,
PPN 47813# AB0, principal or interest") to:
Bankers Trust Company
14 Wall Street
New York, NY 10005
SWIFT Code: BKTR US 33
ABA #021001033, Account No.: 99-911-145
FCC# 098069
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
GE Financial Assurance
Account: First Colony Life Insurance Company
Two Union Square, 601 Union Street
Seattle, WA 98101
Attn: Investment Accounting
Telephone No.: (206) 516-2871
Fax No.: (206) 516-4740
Original note agreement, conformed copy of the note agreement, amendment
requests, financial statements, to be addressed as follows:
Attn: Investment Dept., Private Placements
Telephone No.: (206) 516-4954
Fax No.: (206) 516-4863
<PAGE>
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
SALKELD & CO.
Delivery Address for Notes:
- --------------------------
Bankers Trust Co.
14 Wall Street, 4th Floor
Mail Stop 4042, Window 61
New York, NY 10005
Acct #098069
Attn.: Lorraine Squires (212) 618-2200
Tax ID No.: 54-0596414
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
General Electric Capital Assurance Company Tranche 2:$10,000,000
GE Financial Assurance
Two Union Square, 601 Union Street
Seattle, WA 98101
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.92% Senior Notes, Tranche 2, due July 7, 2009,
PPN 47813# AB0, principal or interest") to:
Bankers Trust Company
14 Wall Street
New York, NY 10005
SWIFT Code: BKTR US 33
ABA #021001033, Account No.: 99-911-145
FCC# 097833
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
GE Financial Assurance
Account: General Electric Capital Assurance Company
Two Union Square, 601 Union Street
Seattle, WA 98101
Attn: Investment Accounting
Telephone No.: (206) 516-2871
Fax No.: (206) 516-4740
Original note agreement, conformed copy of the note agreement, amendment
requests, financial statements, to be addressed as follows:
Attn: Investment Dept., Private Placements
Telephone No.: (206) 516-4954
Fax No.: (206) 516-4863
<PAGE>
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
SALKELD & CO.
Delivery Address for Notes:
- --------------------------
Bankers Trust Co.
14 Wall Street, 4th Floor
Mail Stop 4042, Window 61
New York, NY 10005
Acct #097833
Attn.: Lorraine Squires (212) 618-2200
Tax ID No.: 91-6027719
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
The Guardian Life Insurance Company of America Tranche 1: $5,000,000
7 Hanover Square Tranche 2: $5,500,000
New York, NY 10004-2616
Attn: Raymond J. Henry, Investment Dept. 20-A
Fax No.: (212) 919-2656/2658
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest" OR "Johns Manville International, Inc.,
--
7.92% Senior Notes, Tranche 2, due July 7, 2009, PPN 47813# AB0, principal or
interest," as applicable) to:
The Chase Manhattan Bank
FED ABA # 021000021
CHASE/NYC/CTR/BNF
A/C 900-9-000200
Reference A/C #G05978, Guardian Life
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
The Guardian Life Insurance Company of America
7 Hanover Square
New York, NY 10004-2616
Attn: Investment Accounting Dept. 17-B
Fax No.: (212) 598-7011
All other notices and communications and notices to:
The Guardian Life Insurance Company of America
7 Hanover Square
New York, NY 10004-2616
Attn: Raymond J. Henry, Investment Dept. 20-A
Fax No.: (212) 919-2656/2658
<PAGE>
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
CUDD & CO.
Delivery Address for Notes
- --------------------------
Chase Manhattan Bank
4 New York Plaza-11th Floor
New York, NY 10004
Attn: Larry Zimmer
(212) 623-0987
Reference A/C #G05978, Guardian Life
Tax ID No.: 13-6022143
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
New York Life Insurance Company Tranche 2:$18,000,000
51 Madison Avenue
New York, NY 10010
Attn: Investment Dept., Private Finance Group
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.92% Senior Notes, Tranche 2, due July 7, 2009,
PPN 47813# AB0, principal or interest") to:
Chase Manhattan Bank
New York, NY 10019
ABA #021-000-021
For the account of: New York Life Insurance Company
General Account No. 008-9-00687
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attn: Treasury Dept., Securities Income Section, Rm. 209
Fax No.: (212) 447-4160
All other notices and communications to:
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010
Attn: Investment Dept., Private Finance Group, Rm. 206
Fax No.: (212) 447-4122
<PAGE>
With a copy of any notices regarding defaults or Events of Default under the
operative documents to:
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010
Attn: Investment Section, Rm. 1104
Fax No.: (212) 576-8340
Tax ID No.: 13-5582869
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
The Penn Mutual Life Insurance Company Tranche 1:$3,500,000
600 Dresher Road
Horsham, PA 19044
Attn: Todd M. Fox, Senior Investment Analyst, Investment Dept. C1A
Phone: (215) 956-8523
Fax: (215) 956-8173
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
Bankers Trust Company
ABA #021-001-033
16 Wall Street
New York, NY 10005
Acct. # 99911145
Account Name: Private Placement Journal
Further Credit: The Penn Mutual Life Insurance Company, A/C #092497
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
The Penn Mutual Life Insurance Company
600 Dresher Road
Horsham, PA 19044
Attn: Todd M. Fox, Senior Investment Analyst, Investment Dept. C1A
Phone: (215) 956-8523
Fax: (215) 956-8173
Tax ID No.: 23-0952300
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
The Penn Insurance and Annuity Company Tranche 1:$3,500,000
600 Dresher Road
Horsham, PA 19044
Attn: Todd M. Fox, Senior Investment Analyst, Investment Dept. C1A
Phone: (215) 956-8523
Fax: (215) 956-8173
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
Bankers Trust Company
ABA #021-001-033
16 Wall Street
New York, NY 10005
Acct. # 99911145
Account Name: Private Placement Journal
Further Credit: The Penn Mutual Life Insurance Company, A/C #092506
Notices:
- -------
All notices and communications, including notices with respect to payments and
written confirmation of each payment, to be addressed as follows:
The Penn Mutual Life Insurance Company
600 Dresher Road
Horsham, PA 19044
Attn: Todd M. Fox, Senior Investment Analyst, Investment Dept. C1A
Phone: (215) 956-8523
Fax: (215) 956-8173
Tax ID No.: 23-2142731
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
The Canada Life Assurance Company Tranche 1:$2,000,000
The Canada Life Assurance Company - SP 11
330 University Avenue
Toronto, Ontario, Canada M5G 1R8
Attn: Paul English, Associate Treasurer, U.S. Private Placements
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
For Regular Principal and Interest:
-----------------------------------
Chase Manhattan Bank
ABA # 021-000-021
A/C #900-9-000168 Attn: Doll Balbadar
Trust Account No. G52750, The Canada Life Assurance Company
Attn: Bond Interest
For Sale to a Broker (Federal Wire Transfers-Cash):
---------------------------------------------------
Chase Manhattan Bank
ABA # 021-000-021
A/C #900-9-000168
Trust Account No. G52750, The Canada Life Assurance Company
Attn: Doll Balbadar
For Call or Maturity:
---------------------
Chase Manhattan Bank
ABA # 021-000-021
A/C #900-9-000192
Trust Account No. G52750, The Canada Life Assurance Company
Attn: Doll Balbadar
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
<PAGE>
Chase Manhattan Bank
North America Insurance
3 Chase Metro Tech Centre- 6th Floor
Brooklyn, NY 11245
Attn: Doll Balbadar
copy to:
The Canada Life Assurance Company
330 University Avenue, SP-12
Toronto, Ontario, Canada M5G 1R8
Attn: Supervisor, Securities Accounting
Send financial statements and all other communications to:
The Canada Life Assurance Company- SP 11
330 University Avenue
Toronto, Ontario, Canada M5G 1R8
Attn: Paul English, Associate Treasurer, U.S. Private Placements
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
J. Romeo & Co.
Delivery Address for Notes
- --------------------------
Courier/Uniformed Messengers For Notes delivered FREE by Lawyer. (Primary
----------------------------
Market). Notes must be deliverd with 48 hours of closing.
Chase Manhattan Bank
4 New York Plaza-11th Floor
Receive Window
New York, NY 10004-2477
Attn: Larry Zimmer (212) 623-0987
for: The Canada Life Assurance Company (Trust Account No. G52750)
For Broker Delivery AGAINST PAYMENT (Secondary Market)
-----------------------------------
Chase Manhattan Bank
4 New York Plaza
Receive Window, Ground Floor
New York, NY 10004-2477
For Delivery Problems: Call Doll Balbadar (718) 242-1774
Tax ID No.: 38-0397420
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Canada Life Insurance Company of America Tranche 1:$4,250,000
The Canada Life Assurance Company
Corporate Treasury, SP-11
330 University Avenue
Toronto, Ontario, Canada M5G 1R8
Attn: Paul English, Associate Treasurer, U.S. Private Placements
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
For Regular Principal and Interest:
-----------------------------------
Chase Manhattan Bank
ABA # 021-000-021
A/C #900-9-000200
Trust Account No. G52709, Canada Life Insurance Company of America
Attn: Doll Balbadar
For our Sale to Broker (Federal Wire Transfers-Cash:
----------------------------------------------------
Chase Manhattan Bank
ABA # 021-000-0217
A/C #900-9-000168
Trust Account No. G52709, Canada Life Insurance Company of America
Attn: Doll Balbadar
For Call or Maturity:
---------------------
Chase Manhattan Bank
ABA # 021-000-021
A/C #900-9-000192
Trust Account No. G52709, Canada Life Insurance Company of America
Attn: Doll Balbadar
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
<PAGE>
Chase Manhattan Bank
North America Insurance
3 Chase Metro Tech Centre- 6th Floor
Brooklyn, NY 11245
Attn: Doll Balbadar
copy to:
The Canada Life Assurance Company
330 University Avenue, SP-12
Toronto, Ontario, Canada M5G 1R8
Attn: Supervisor, Securities Accounting
Send financial statements and all other communications to:
The Canada Life Assurance Company
Corporate Treasury, SP-11
330 University Avenue
Toronto, Ontario, Canada M5G 1R8
Attn: Paul English, Associate Treasurer, U.S. Private Placements
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
J. Romeo & Co.
Delivery Address for Notes
- --------------------------
Courier/Uniformed Messengers Notes within 48 hours of closing
----------------------------
Chase Manhattan Bank
4 New York Plaza-11th Floor
Receive Window
New York, NY 10004-2477
Attn: Larry Zimmer (212) 623-0987
for: Canada Life Insurance Company of America (Trust Account No. G52709)
For Broker Delivery AGAINST PAYMENT (Secondary Market)
-----------------------------------
Chase Manhattan Bank
4 New York Plaza
Receive Window, Ground Floor
New York, NY 10004-2477
For Delivery Problems: Call Doll Balbadar (718) 242-1774
Tax ID No.: 38-2816473
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Canada Life Insurance Company of New York Tranche 1:$750,000
The Canada Life Assurance Company- SP 11
330 University Avenue
Toronto, Ontario, Canada M5G 1R8
Attn: Paul English, Associate Treasurer, U.S. Private Placements
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
For regular Principal and Interest:
-----------------------------------
Chase Manhattan Bank
ABA # 021-000-021
A/C #900-9-000200
Trust Account No. G52685, Canada Life Insurance Company of New York
Attn: Bond Interest
For our Sale to a Broker (Federal Wire Transfers-Cash):
-------------------------------------------------------
Chase Manhattan Bank
ABA # 021-000-021
A/C #900-9-000168
Trust Account No. G52685, Canada Life Insurance Company of New York
Attn: Doll Balbadar
For Call or Maturity:
---------------------
Chase Manhattan Bank
ABA # 021-000-021
A/C #900-9-000192
Trust Account No. G52685, Canada Life Insurance Company of New York
Attn: Doll Balbadar
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
<PAGE>
Chase Manhattan Bank
North America Insurance
3 Chase Metro Tech Centre- 6th Floor
Brooklyn, NY 11245
Attn: Doll Balbadar
copy to:
The Canada Life Assurance Company
330 University Avenue, SP-12
Toronto, Ontario, Canada M5G 1R8
Attn: Supervisor, Securities Accounting
Send financial statements and all other communications to:
The Canada Life Assurance Company- SP 11
330 University Avenue
Toronto, Ontario, Canada M5G 1R8
Attn: Paul English, Associate Treasurer, U.S. Private Placements
Name of Nominee in which Notes are to be issued:
- -----------------------------------------------
J. Romeo & Co.
Delivery Address for Notes
- --------------------------
Courier/Uniformed Messengers Notes within 48 hours of closing
----------------------------
Chase Manhattan Bank
4 New York Plaza-11th Floor
Receive Window
New York, NY 10004-2477
Attn: Larry Zimmer (212) 623-0987
for: The Canada Life Insurance Company of New York (Trust Account No.
G52685)
For Broker Delivery AGAINST PAYMENT (Secondary Market)
------------------------------------
Chase Manhattan Bank
4 New York Plaza
Receive Window, Ground Floor
New York, NY 10004-2477
For Delivery Problem: Call Doll Balbadar (718) 242-1774
Tax ID No.: 13-2690792
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
TMG Life Insurance Company Tranche 1:$2,000,000
c/o The Mutual Group (U.S.), Inc.
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Attention: Connie Keller
Phone: (414) 641-4022
Fax: (414) 641-4055
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.71% Senior Notes, Tranche 1, due July 7, 2006,
PPN 47813# AA2, principal or interest") to:
ABA Routing Transit No.: Norwest Bank Minnesota, N.A.
*(field 3400) 091000019
Beneficiary Account Number: 0000840245 (Must be 10 digits in length)
Beneficiary Account Name: Trust Wire Clearing (Must be on line 2)
*(field 4200)
OBI FFC: I.C. 13326600 Johns Manville PPN:
*(field 6000) P= I=
End Balance=
*Federal Reserve Field Tag Number
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
TMG Life Insurance Company
c/o The Mutual Group (U.S.), Inc.
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Attention: Tamie Greenwood
Phone: (414) 641-4027
Fax: (414) 641-4055
<PAGE>
All other communication shall be delivered to:
TMG Life Insurance Company
c/o The Mutual Group (U.S.), Inc.
401 North Executive Drive, Suite 300
Brookfield, WI 53008-0503
Attention: Tamie Greenwood
Phone: (414) 641-4027
Fax: (414) 641-4055
Tax ID No.: 45-0208990
- ----------
<PAGE>
Schedule A to Supplement to Note Purchase Agreements
----------------------------------------------------
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series 1999A Notes
Name and Address of Purchaser: to be Purchased
- ----------------------------- -----------------
Teachers Insurance and Annuity Association of America Tranche 2:$15,000,000
730 Third Avenue
New York, NY 10017
Payments:
- --------
All Payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as "Johns
Manville International, Inc., 7.92% Senior Notes, Tranche 2, due July 7, 2009,
PPN 47813# AB0, principal or interest") to:
Chase Manhattan Bank
ABA No. 021-000-021
New York, NY
Account #900-9-000200
For further credit to account #G07040
Notices:
- -------
Notices with respect to payments and written confirmation of each payment, to be
addressed as follows:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017
Attn: Securities Accounting Division
Phone: (212) 916-4188
Fax: (212) 916-6955
All other communications shall be delivered to:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017
Attn: Securities Division, Private Placements
Phone: (212) 916-4335
Fax: (212) 916-6582
Tax ID No.: 13-1624203
- ----------
<PAGE>
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:
"Additional Notes" is defined in Section 2.2.
"Additional Purchasers" means the purchasers of a Series of Additional
Notes as set forth in the applicable Supplement for such Additional Notes.
"Affiliate" means, at any time, and with respect to any Person, (a)
any other Person (other than a Restricted Subsidiary) 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.
"Business Day" means (a) for the purposes of Section 8.7 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or authorized to be closed, and (b) for the purposes of any
other provision of this Agreement, any day other than a Saturday, a Sunday or a
day on which commercial banks in Denver, Colorado or New York, New York are
required or authorized to be closed.
"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.
"Closing" is defined in Section 3.
"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" means Johns Manville Corporation, a Delaware corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Debt" means, as of any date of determination, the total
of all Debt of the Company and its Restricted Subsidiaries outstanding on such
date, after eliminating all offsetting debits and credits between the Company
and its Restricted Subsidiaries and all other
SCHEDULE B - 1
<PAGE>
items required to be eliminated in the course of the preparation of consolidated
financial statements of the Company and its Restricted Subsidiaries in
accordance with GAAP.
"Consolidated Net Income" means, for any period, the after tax net
income (or loss) of the Company and its Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP, excluding extraordinary gains or
losses.
"Consolidated Net Worth" means, for any period and without giving
effect to any items of other comprehensive income (determined in accordance with
GAAP), (a) the total assets of the Company and its Restricted Subsidiaries which
would be shown as assets on a consolidated balance sheet of the Company and
Restricted 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 Restricted Subsidiaries, minus (b) the total
liabilities of the Company and its Restricted Subsidiaries which would be shown
as liabilities on a consolidated balance sheet of the Company and its Restricted
Subsidiaries as of such time prepared in accordance with GAAP.
"Consolidated Operating Cash Flow" means, for any period, the sum of
(a) Consolidated Net Income for such period and (b) the amount of all interest
expense (net of interest income), depletion, taxes and depreciation expense, and
amortization expense of the Company and its Restricted Subsidiaries, but only to
the extent deducted in the determination of Consolidated Net Income for such
period determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Assets" means, at any date of determination, on a
consolidated basis for the Company and its Restricted Subsidiaries, total
assets, determined in accordance with GAAP.
"Consolidated Total Capitalization" means, at any time, the sum of
Consolidated Net Worth and Consolidated Debt.
"Debt" means, with respect to any Person, without duplication, (a) all
indebtedness of such Person (including with respect to any Notes issued pursuant
to this Agreement and the Other Agreements) for borrowed money; (b) all
obligations issued, undertaken or assumed as the deferred purchase price of
property or services (other than trade accounts payables and accrued expenses
arising in the ordinary course of business) to the extent such amounts would in
accordance with GAAP be recorded as debt on the balance sheet of such Person;
(c) all noncontingent reimbursement or payment obligations of such Person with
respect to Surety Instruments that have remained unpaid for more than three
Business Days; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments; (e) all indebtedness created or arising under any
conditional sale or title retention agreement, or incurred as financing, in
either case with respect to property acquired by the Person (even though the
rights and remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
obligations of such Person with respect to leases which are or should be
capitalized on the balance sheet of such Person in accordance with GAAP; (g) the
current portion of all obligations of such Person arising with respect to
preferred stock which is mandatorily redeemable by such Person; (h) all
indebtedness referred to in clauses
SCHEDULE B - 2
<PAGE>
(a) through (g) above secured by (or for which the holder of such indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon
or in property (including accounts or contract rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of such
indebtedness; (i) all Guarantees and other direct and indirect liabilities of
such Person in respect of indebtedness or obligations of others of the kinds
referred to in clauses (a) through (h) above; and (j) the aggregate financing
amount payable from accounts receivable in connection with the Permitted
Receivables Facility. For all purposes, the Debt of any Person shall include all
recourse Debt of any partnership or joint venture in which such Person is a
general partner or a joint venturer or a member.
"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 2% per annum above
the rate of interest stated in clause (a) of the first paragraph of the Notes.
"Environmental Claims" means any and all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or release or injury to
the environment.
"Environmental Laws" means any and all Federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case relating to environmental, health, safety and land use matters.
"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.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"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
SCHEDULE B - 3
<PAGE>
(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.
"Guarantee" 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;
(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 Guarantee, the indebtedness or other obligations that are the subject of
such Guarantee shall be assumed to be direct obligations of such obligor.
"Guaranteed Obligations" is defined in Section 22.1.
"Guaranty" is defined in Section 22.1.
"holder" means, with respect to any Note, the Person in whose name
such Note is registered in the register maintained by the Issuer pursuant to
Section 13.1.
"Institutional Investor" means (a) any original purchaser of a Note,
and (b) any other holder of a Note holding more than $2,000,000 of the aggregate
principal amount of the Notes then outstanding that is a 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.
"Issuer" means Johns Manville International, Inc., a Delaware
corporation.
SCHEDULE B - 4
<PAGE>
"Joint Venture" means a corporation, partnership, limited liability
company, joint venture or other similar arrangement (whether created by contract
or conducted through a separate legal entity) now or hereafter formed by the
Company or any of its Restricted Subsidiaries with another Person in order to
conduct a common venture or enterprise with such Person.
"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 (but not
under any operating 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).
"Make-Whole Amount" is defined in Section 8.7.
"Material" or "Materially" means material or materially, as the case
may be, in relation to the business, operations, affairs, financial condition,
assets or properties of the Company and its Restricted 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 Restricted Subsidiaries taken as a whole, or (b) the ability of
the Company, the Issuer or the Subsidiary Guarantors, if any, to perform their
respective obligations under this Agreement, the Notes or the Subsidiary
Guaranty, as applicable, or (c) the validity or enforceability of this
Agreement, the Notes or the Subsidiary Guaranty.
"Material Subsidiary" means, at any time, the Issuer and any other
direct or indirect Subsidiary which meets either of the following conditions:
(i) the Company's and its other Subsidiaries' proportionate share of the total
assets (after intercompany eliminations) of such Subsidiary exceeds 5% of the
total assets of the Company and all of its Subsidiaries on a consolidated basis;
or (ii) the income from continuing operations of such Subsidiary before income
taxes, extraordinary items and cumulative effect of any change in accounting
principles exceeds 5% of such income of the Company and all of its Subsidiaries
on a consolidated basis, as of the end of or for, as the case may be, the then
most recently completed fiscal year of the Company, based upon the annual
financial statements for the most recently completed fiscal year of the Company.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Notes" means the Series A Notes and any Additional Notes issued
pursuant to Section 2.2, together with any such notes issued in substitution
therefor pursuant to Section 13 of the Agreements.
SCHEDULE B - 5
<PAGE>
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company or the Issuer, as applicable,
whose responsibilities extend to the subject matter of such certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Permitted Receivables" means all obligations of any obligor (whether
now existing or hereafter arising) under a contract for sale of goods or
services by the Company or any of its Restricted Subsidiaries, which shall
include any obligation of such obligor (whether now existing or hereafter
arising) to pay interest, finance charges or amounts with respect thereto, and,
with respect to any of the foregoing receivables or obligations, (a) all of the
interest of the Company or any of its Restricted Subsidiaries in the goods
(including returned goods) the sale of which gave rise to such receivable or
obligation after the passage of title thereto to any obligor, (b) all other
Liens and property subject thereto from time to time purporting to secure
payment of such receivables or obligations, and (c) all guarantees, insurance,
letters of credit and other agreements or arrangements of whatever character
from time to time supporting or securing payment of any such receivables or
obligations.
"Permitted Receivables Facility" means any agreement of the Company or
any of its Restricted Subsidiaries providing for sales, transfers or conveyances
of Permitted Receivables purporting to be sales (and considered sales under
GAAP) that do not provide, directly or indirectly, for recourse against the
seller of such Permitted Receivables (or against any of such seller's
Affiliates) by way of a Guarantee or any other support arrangement, with respect
to the amount of such Permitted Receivables (based on the financial condition or
circumstances of the obligor thereunder), other than such limited recourse as is
reasonable given market standards for transactions of a similar type, taking
into account such factors as historical bad debt loss experience and obligor
concentration levels.
"Person" means an individual, partnership, corporation, limited
liability company, association, 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.
"Preferred Stock" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
SCHEDULE B - 6
<PAGE>
"property" or "properties" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, choate
or inchoate.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Required Holders" means, with respect to any Series, at any time, the
holders of more than 50% in principal amount of the Notes of such Series at the
time outstanding (exclusive of Notes then owned by the Company or any of its
Subsidiaries or Affiliates).
"Responsible Officer" means with respect to the Company or the Issuer,
as applicable, its Senior Financial Officer and any other officer of the Company
or the Issuer with responsibility for the administration of the relevant portion
of this Agreement.
"Restricted Subsidiary" means the Issuer and any other Subsidiary of
the Company or of any of its Wholly-Owned Restricted Subsidiaries which (a) at
least a majority of the voting securities of which are owned by the Company
and/or one or more Wholly-Owned Restricted Subsidiaries, and (b) is not
designated as an Unrestricted Subsidiary. The Company or the Issuer may
designate in writing to each of the holders of the Notes any Unrestricted
Subsidiary as a Restricted Subsidiary and may designate in writing to each of
the holders of the Notes any Restricted Subsidiary as an Unrestricted
Subsidiary; provided that (i) no such designation of an Unrestricted Subsidiary
--------
as a Restricted Subsidiary shall be effective unless immediately after giving
effect thereto such Subsidiary could incur an additional $1.00 of Consolidated
Debt under Section 10.5; (ii) no such designation of a Restricted Subsidiary as
an Unrestricted Subsidiary shall be effective unless (x) such designation is
treated as a transfer under Section 10.2 and such designation is permitted by
Section 10.2 and (y) such Subsidiary does not own any stock, other equity
interest or Debt of the Company or a Restricted Subsidiary; and (iii) no such
designation of a Restricted Subsidiary as an Unrestricted Subsidiary or of an
Unrestricted Subsidiary as a Restricted Subsidiary shall be effective unless,
immediately after giving effect thereto (A) the Company could incur at least
$1.00 of additional Consolidated Debt under Section 10.5, and no Default or
Event of Default would exist; provided, further, that any Subsidiary that has
been redesignated as a Restricted Subsidiary or Unrestricted Subsidiary as
provided in the foregoing sentence of this definition may not thereafter be
designated or redesignated as a Restricted Subsidiary or an Unrestricted
Subsidiary, as the case may be.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Security" has the meaning set forth in section 2(l) of the Securities
Act.
"Senior Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or comptroller of the Company or the
Issuer, as applicable.
"Series" means each series of Notes issued pursuant to Section 2,
including the Series A Notes and each series of Additional Notes.
"Subordinated Debt" means any Debt that is in any manner subordinated
in right of payment or security in any respect to Debt evidenced by the Notes.
SCHEDULE B - 7
<PAGE>
"Subsidiary" means, as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than 50% of the outstanding voting stock, membership interests or
other equity interests (in the case of Persons other than corporations) having
ordinary voting power to elect a majority of the board of directors or other
Persons performing similar functions, is owned or controlled directly or
indirectly by such Person, or one or more of the Subsidiaries of such Person, or
a combination thereof. Unless the context otherwise clearly requires, any
reference to a "Subsidiary" is a reference to a Subsidiary of the Company.
"Subsidiary Guarantor" means each U.S. Subsidiary that is required to
be a party to the Subsidiary Guaranty.
"Subsidiary Guaranty" means that certain Subsidiary Guaranty,
substantially in the form of Exhibit 9.6(a) hereto, to be executed by the
Subsidiary Guarantors, if any, as amended, supplemented and modified from time
to time.
"Supplement" is defined in Section 2.2.
"Surety Instruments" means all letters of credit (including standby
and commercial), bankers' acceptances, bank guarantees, shipside bonds, surety
bonds and similar instruments.
"Trust" means the Manville Personal Injury Settlement Trust.
"Trust Tax Benefits" means, for any fiscal period, the amount of tax
benefits attributable during such fiscal period (or if such fiscal period is a
fiscal quarter, to be attributable during the fiscal year of which such fiscal
period is a part) resulting from (a) purchases by the Company during such fiscal
year of its common stock from the Trust, and/or (b) purchases by the Company
during previous fiscal years of its common stock from the Trust, if such
benefits could not be realized during previous fiscal years, each as determined
on a consolidated basis in accordance with GAAP.
"Unrestricted Subsidiary" means any Subsidiary which is designated as
an Unrestricted Subsidiary on Schedule 5.4 attached hereto or is designated as
such in writing by the Company or the Issuer to each of the holders of the Notes
pursuant to the definition of "Restricted Subsidiary"; provided that the Issuer
may not be designated as an Unrestricted Subsidiary.
"U.S. Subsidiary" means a Subsidiary organized pursuant to the laws of
any of the several states of the United States of America.
"Wholly-Owned Restricted Subsidiary" means, at any time, any
Restricted 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 Restricted
Subsidiaries at such time.
SCHEDULE B - 8
<PAGE>
EXHIBIT 10.1
SHARE PURCHASE AND BOND DISCHARGE AGREEMENT
AGREEMENT dated as of June 7, 1999 between Johns Manville Corporation,
a Delaware corporation (the "Company"), and Manville Personal Injury Settlement
Trust (the "Trust").
WHEREAS, the Trust owns 124,927,110 shares of the Company's common
stock, $.01 par value per share (the "Common Stock");
WHEREAS, the Company is the obligor on the Manville Settlement Trusts
Second Bond due March 31, 2015 in favor of the Trust (the "Second Bond");
WHEREAS, the Company and the Trust are parties to an Agreement, dated
as of September 22, 1994, between the Trust and the Company (the "Subsidiary
Agreement");
WHEREAS, the Company and the Trust desire to discharge the Second Bond
and terminate the Subsidiary Agreement, subject to the terms and conditions
contained herein; and
WHEREAS, the Company desires to purchase from the Trust, and the Trust
desires to sell to the Company, a portion of the Trust's shares of the Common
Stock, subject to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES AND DISCHARGE OF SECOND BOND
1.1 Discharge of Second Bond. Upon the terms and subject to the
------------------------
conditions of this Agreement, at the Second Bond Closing provided for in Section
1.4 hereof, the Company shall pay to the Trust an amount of $33,215,716 to
discharge the Second Bond (the "Second Bond Amount").
1.2 Purchase and Sale of the Shares. Upon the terms and subject to
-------------------------------
the conditions of this Agreement, at the Share Purchase Closing provided for in
Section 1.4 hereof, the Trust will sell, assign, transfer and deliver to the
Company and the Company will purchase, acquire and accept from the Trust, free
and clear of all liens, encumbrances, options, pledges, security interests,
claims, charges or restrictions whatsoever (collectively, "Liens"), a number of
shares (the "Shares") of the Common Stock equal to (a) 166,784,284 divided by
(b) the average of the closing sales price of
<PAGE>
the Common Stock on the New York Stock Exchange for the twenty trading days
from (and including) June 8, 1999 to (and including) July 6, 1999.
1.3 Consideration. Upon the terms and subject to the conditions of
-------------
this Agreement, in consideration of the aforesaid sale, assignment, transfer and
delivery of the Shares, at the Share Purchase Closing provided for in Section
1.4 hereof, the Company shall pay to the Trust an amount of $166,784,284.
1.4 Closing. The consummation of the transactions contemplated by
-------
Section 1.1 of this Agreement (the "Second Bond Closing") will take place at
11:00 a.m., New York City time, on June 30, 1999, or, if the conditions set
forth in Article III hereof with respect to such transactions shall not have
been satisfied or waived by such date, then as soon as reasonably practicable
after the satisfaction or waiver of all such conditions. The consummation of the
transactions contemplated by Section 1.2 of this Agreement (the "Share Purchase
Closing") will take place at 11:00 a.m., New York City time, on July 7, 1999,
or, if the conditions set forth in Article III hereof with respect to such
transactions shall not have been satisfied or waived by such date, then as soon
as reasonably practicable after the satisfaction or waiver of all such
conditions.
1.5 Deliveries by the Trust. At the Second Bond Closing, the Trust
-----------------------
shall deliver to the Company the Second Bond, for cancellation. At the Share
Purchase Closing, the Trust shall deliver to the Company one or more stock
certificates representing the Shares, duly endorsed or accompanied by stock
powers duly executed in blank or duly executed instruments of transfer and with
all requisite stock transfer tax stamps attached.
1.6 Deliveries by the Company. At the Second Bond Closing, the
-------------------------
Company shall deliver to the Trust $33,215,716 by wire transfer of federal funds
to the account specified on Schedule 1.6. At the Share Purchase Closing, the
------------
Company shall deliver to the Trust $166,784,284 by wire transfer of federal
funds to the account specified on Schedule 1.6.
------------
1.7 Subsidiary Agreement. From and after the date hereof, the
--------------------
Subsidiary Agreement shall be terminated and all rights and obligations
thereunder shall be extinguished.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Trust. The Trust
-------------------------------------------
represents and warrants to the Company:
(a) as of the date of this Agreement and as of the date of each
of the Second Bond Closing and the Share Purchase Closing that:
2
<PAGE>
(i) The Trust has been duly organized and is validly existing as a
trust under the laws of the State of New York. The Trust has all requisite
power and authority to execute and deliver this Agreement. The execution and
delivery of this Agreement have been duly and validly authorized by the Trust,
and no other proceedings on the part of the Trust are necessary to authorize the
execution and delivery of this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Trust and constitutes a valid and binding obligation of the Trust
enforceable against the Trust in accordance with its terms.
(b) as of the date of this Agreement and as of the date of the Second Bond
Closing that:
(i) The Trust has all requisite power and authority to consummate the
transactions contemplated by Section 1.1 of this Agreement. Such transactions
have been duly and validly authorized by the Trust, and no other proceedings on
the part of the Trust are necessary to authorize such transactions.
(ii) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders of domestic, foreign, supranational,
national, federal, state, regional or local government and departments, bureaus,
agencies, authorities, commissions, boards, courts, tribunals, or other
legislative, executive, judicial, regulatory or administrative bodies or
instrumentalities of any such government or any official empowered to act on
behalf of any of the foregoing, or any arbitral tribunal acting within the
proper scope of its jurisdiction (collectively, "Governmental Agencies"), if
any, and other persons required to be received by the Trust in order to
consummate the transactions contemplated by Section 1.1 of this Agreement have
been received by the Trust, except for those which the failure to receive would
not prevent or materially delay the consummation of the transactions
contemplated hereby.
(c) as of the date of this Agreement and as of the Share Purchase Closing
that:
(i) The Trust has all requisite power and authority to consummate the
transactions contemplated by Section 1.2 of this Agreement. Such transactions
have been duly and validly authorized by the Trust, and no other proceedings on
the part of the Trust are necessary to authorize such transactions.
(ii) The Trust has good and valid title to the Shares, free and clear
of all Liens. At the Share Purchase Closing, good and valid title to the Shares
will pass to the Company, free and clear of all Liens. The Shares are not
subject to any voting trust agreement or other contract, agreement, arrangement,
commitment or understanding, including, without limitation, any contract,
agreement, arrangement, commitment or understanding relating to the voting,
dividend rights or disposition of the Shares, except for certain rights set
forth in the Second Amended and Restated
3
<PAGE>
Supplemental Agreement, dated as of April 5, 1996 between the Company and the
Trust.
(iii) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders Governmental Agencies, if any, and
other persons required to be received by the Trust in order to consummate the
transactions contemplated by Section 1.2 of this Agreement have been received by
the Trust, except for those which the failure to receive would not prevent or
materially delay the consummation of the transactions contemplated hereby.
2.2 Representations and Warranties of the Company. The Company represents
---------------------------------------------
and warrants to the Trust:
(a) as of the date of this Agreement and as of the date of each of the
Second Bond Closing and the Share Purchase Closing that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware. The Company has all requisite power and authority to execute and
deliver this Agreement. The execution and delivery of this Agreement have been
duly and validly authorized by the Company, and no other proceedings on the part
of the Company are necessary to authorize the execution and delivery of this
Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
(b) as of the date of this Agreement and as of the date of the Second
Bond Closing that:
(i) The Company has all requisite power and authority to
consummate the transactions contemplated by Section 1.1 of this Agreement. Such
transactions have been duly and validly authorized by the Company, and no other
proceedings on the part of the Company are necessary to authorize such
transactions.
(ii) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders Governmental Agencies, if any, and
other persons required to be received by the Company in order to consummate the
transactions contemplated by Section 1.1 of this Agreement have been received by
the Company, except for those which the failure to receive would not prevent or
materially delay the consummation of the transactions contemplated hereby.
(c) as of the date of this Agreement and as of the Share Purchase
Closing that:
4
<PAGE>
(i) The Company has all requisite power and authority to consummate
the transactions contemplated by Section 1.2 of this Agreement. Such
transactions have been duly and validly authorized by the Company, and no other
proceedings on the part of the Company are necessary to authorize such
transactions.
(ii) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders Governmental Agencies, if any, and
other persons required to be received by the Company in order to consummate the
transactions contemplated by Section 1.2 of this Agreement have been received by
the Company, except for those which the failure to receive would not prevent or
materially delay the consummation of the transactions contemplated hereby.
ARTICLE III
CONDITIONS
3.1 Conditions Precedent to the Obligations of the Trust. The obligations
----------------------------------------------------
of the Trust to consummate the transactions contemplated by Section 1.1 of this
Agreement are subject to the satisfaction, or waiver by the Trust, of the
condition that the representations and warranties of the Company contained in
Section 2.2 (a) and (b) of this Agreement are true and correct in all material
respects as of the date when made and as of the Second Bond Closing. The
obligations of the Trust to consummate the transactions contemplated by Section
1.2 of this Agreement are subject to the satisfaction, or waiver by the Trust,
of the condition that the representations and warranties of the Company
contained in Section 2.2 (a) and (c) of this Agreement are true and correct in
all material respects as of the date when made and as of the Share Purchase
Closing.
3.2 Conditions Precedent to the Obligations of the Company. The obligations
------------------------------------------------------
of the Company to consummate the transactions contemplated by Section 1.1 of
this Agreement are subject to the satisfaction, or waiver by the Company, of the
condition that the representations and warranties of the Trust contained in
Section 2.1 (a) and (b) of this Agreement are true and correct in all material
respects as of the date when made and as of the Second Bond Closing. The
obligations of the Company to consummate the transactions contemplated by
Section 1.2 of this Agreement are subject to the satisfaction, or waiver by the
Company, of the condition that the representations and warranties of the Trust
contained in Section 2.2 (a) and (c) of this Agreement are true and correct in
all material respects as of the date when made and as of the Share Purchase
Closing.
ARTICLE IV
MISCELLANEOUS
4.1 Termination. If either or both of the Second Bond Closing or the Share
-----------
Purchase Closing shall not have occurred on or prior to July 15, 1999, then
either party shall have the right to terminate this Agreement by giving written
notice to the other party hereto, except that such notice shall have no effect
on the transactions
5
<PAGE>
consummated at either of the Second Bond Closing or the Share Purchase Closing
that shall have occurred prior to the date of such notice.
4.2 Amendments. This Agreement may be modified, supplemented or amended
----------
at any time and from time to time only by a writing signed by each party
hereto.
4.3 Notices. All notices, requests and other communications to any party
-------
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given:
if to the Trust, to:
Manville Personal Injury Settlement Trust
143 Bedford Road, Suite 200
Katonah, NY 10536
Fax: (914) 767-3700
Attention: David T. Austern, Esq.
if to the Company, to:
Johns Manville Corporation
717 17th Street
Denver, Colorado 80202
Fax: (303) 978-4842
Attention: Dion Persson, Esq.
4.4 Counterparts; Integration. This Agreement may be signed in any number
-------------------------
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
together with its Schedules constitutes the entire agreement and understanding
between the parties hereto relating to the subject matter hereof and supersedes
any and all prior agreements and understandings, oral and written, relating to
the subject matter hereof.
4.5 Headings. The headings used in this Agreement are inserted for
--------
convenience only and neither constitute a portion of this Agreement nor in any
manner affect the construction of the provisions of this Agreement.
4.6 Successors and Assigns. The provisions of this Agreement shall be
----------------------
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns except that neither the Company nor the Trust may assign
or otherwise transfer any of its rights or delegate obligations under this
Agreement.
6
<PAGE>
4.7 Survival of Representations and Warranties. The representations and
------------------------------------------
warranties of the parties contained in this Agreement shall survive the
Closing indefinitely.
4.8 Expenses. Each party shall bear all costs and expenses incurred by it
--------
in connection with this Agreement.
4.9 Specific Performance. Each of the Company and the Trust agrees that
--------------------
the other party would be irreparably damaged if for any reason the Company
or the Trust, as the case may be, failed to perform its obligations under this
Agreement and that such other party would not have an adequate remedy at law for
money damages in such event. Accordingly, the Company and the Trust each agrees
that the other party shall, to the maximum extent permitted, be entitled to
specific performance and injunctive and other relief to enforce the performance
of this Agreement. This provision is without prejudice to any other rights that
the Company or the Trust may have against the other party for any failure of
such other party to perform its obligations hereunder.
4.10 Third Parties. This Agreement constitutes an agreement solely
-------------
between the parties hereto, and is not intended to and shall not confer any
rights, remedies, obligations or liabilities, legal or equitable, on any person
or entity other than the parties hereto and their respective successors and
assigns, or otherwise constitute any person or entity a third-party beneficiary
under or by reason of this Agreement.
4.11 Governing Law; Submission to Jurisdiction. This Agreement shall be
-----------------------------------------
governed by and construed in accordance with the laws of the State of New
York, including Section 5-1401 of the New York General Obligations Law. The
Company and the Trust hereby submit to the exclusive jurisdiction of the United
States Bankruptcy Court for the Southern District of New York for purposes of
all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. Each of the Company and the Trust irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
4.12 Further Assurances. From time to time after the Share Purchase
------------------
Closing and the Second Bond Closing, at the request of one of the parties
hereto, the Trust and the Company shall execute and deliver to such requesting
party such documents and take such other action as such requesting party may
reasonably request in order to consummate more effectively the transactions
contemplated hereby.
4.13 No Further Representations. Except as set forth in this Agreement,
--------------------------
neither the Trust nor the Company makes nor has made any other representations
or warranties, express or implied.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
JOHNS MANVILLE CORPORATION
By: /s/ Charles L. Henry
--------------------------------------
Name: C. L. Henry
Title: Chairman of the Board, President
and Chief Executive Officer
MANVILLE PERSONAL INJURY
SETTLEMENT TRUST
By: /s/ Robert A. Falise
--------------------------------------
Name: Robert A. Falise
Title: Chairman and Managing Trustee
8
<PAGE>
Schedule 1.6
------------
Wire Transfer Instructions
--------------------------
Bankers Trust Company
One Bankers Trust Plaza
New York, NY 10006
ABA #021001033
RE: 99401399
Attn: Lauren Chrust x3102
For Further Credit to Manville Trust Grantor Account #106100
9
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE JUNE 30,
1999 FORM 10Q OF JOHNS MANVILLE CORPORATION AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 32,436
<SECURITIES> 2,671
<RECEIVABLES> 340,996
<ALLOWANCES> 6,104
<INVENTORY> 143,439
<CURRENT-ASSETS> 571,917
<PP&E> 1,698,409
<DEPRECIATION> 702,016
<TOTAL-ASSETS> 2,253,448
<CURRENT-LIABILITIES> 346,719
<BONDS> 497,430
0
0
<COMMON> 1,643
<OTHER-SE> 900,581
<TOTAL-LIABILITY-AND-EQUITY> 2,253,448
<SALES> 1,054,610
<TOTAL-REVENUES> 1,054,610
<CGS> 756,882
<TOTAL-COSTS> 756,882
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 1,208
<INTEREST-EXPENSE> 14,915
<INCOME-PRETAX> 150,432
<INCOME-TAX> 32,343
<INCOME-CONTINUING> 118,089
<DISCONTINUED> 0
<EXTRAORDINARY> (5,758)
<CHANGES> 0
<NET-INCOME> 112,331
<EPS-BASIC> .70
<EPS-DILUTED> .69
</TABLE>
