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EXHIBIT 10.32
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THIS AGREEMENT CONTAINS "CONFIDENTIAL INFORMATION" AND IS SUBJECT TO SECTION 20
OF THE NOTE PURCHASE AGREEMENT REFERENCED BELOW
▇▇▇▇▇ COMPANIES, INC.
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FIRST AMENDMENT AGREEMENT
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RE:
NOTE PURCHASE AGREEMENT DATED AS OF APRIL 15, 1996
AND
$75,000,000
6.43% SENIOR NOTES DUE APRIL 15, 2003
DATED AS OF MARCH 1, 1998
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▇▇▇▇▇ COMPANIES, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FIRST AMENDMENT AGREEMENT
RE:
NOTE PURCHASE AGREEMENT DATED AS OF APRIL 15, 1996
AND
$75,000,000
6.43% SENIOR NOTES DUE APRIL 15, 2003
Dated as of March 1, 1998
To the Institutional Investors
listed on the signature pages hereof
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement (as in effect
immediately prior to the Effective Date, the "EXISTING NOTE AGREEMENT", and as
amended hereby, the "AMENDED NOTE AGREEMENT"), dated as of April 15, 1996,
between ▇▇▇▇▇ Companies, Inc., a Delaware corporation (the "COMPANY"), and each
of the institutions listed on Annex I thereto (the "ORIGINAL HOLDERS"), under
and pursuant to which Seventy-Five Million Dollars ($75,000,000) aggregate
principal amount of the Company's 6.43% Senior Notes due April 15, 2003
(collectively, as in effect immediately prior to the Effective Date, the
"EXISTING NOTES", and as amended hereby, the "AMENDED NOTES") were issued to the
Original Holders. Each of the institutions listed on the signature pages hereof
is herein referred to, individually, as a "HOLDER", and collectively, as the
"HOLDERS".
The Company desires to enter into this First Amendment Agreement (this
"AGREEMENT") to, among other things, (i) amend the Existing Note Agreement to
modify certain financial covenants, (ii) amend the Subsidiary Guaranty to
provide for the deletion of the Foreign Material Subsidiaries as parties
thereto, (iii) require the grant, by the Company, ▇▇▇▇▇ Air Freight, Inc. and
each other Domestic Material Subsidiary from time to time owning capital stock
or similar equity interests of any Majority-Owned Foreign Material Subsidiary,
to the Collateral Agent, for the equal and ratable benefit of each of the Banks
and the holders from time to time of the Notes, of a pledge of and security
interest in 65% of the capital stock or similar equity interests of each
Majority-Owned Foreign Material Subsidiary owned by each such Person, and (iv)
amend the Existing Notes with respect to references therein to all Material
Subsidiaries entering into the Subsidiary Guaranty, all as more particularly
described herein.
As of the Effective Date (as defined in Section 3), the Holders hold,
beneficially or of record, one hundred percent (100%) of the outstanding
Existing Notes.
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In consideration of the foregoing and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the Company and, subject to satisfaction of the conditions set forth in Section
3, the Holders, hereby agree to the amendments to the Existing Note Agreement
and the Existing Notes set forth herein.
1. DEFINED TERMS.
All capitalized terms used but not specifically defined in this
Agreement have the respective meanings assigned to them in, or pursuant to the
provisions of, (assuming the effectiveness of the amendments set forth herein)
the Amended Note Agreement (including, without limitation, the revisions to the
defined terms used in the Existing Note Agreement as set forth in Section 4.6 of
this Agreement). As used in this Agreement, the term "TRANSACTION DOCUMENTS"
means, collectively, each of this Agreement, the Amended Note Agreement, the
Amended Notes, the Intercreditor Agreement (as defined below) and the Pledge
Agreements (as defined below).
2. REPRESENTATIONS AND WARRANTIES.
The Company warrants and represents to each Holder that as of the
Effective Date:
2.1 ORGANIZATION; POWER AND AUTHORITY. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and is duly qualified as a foreign corporation and is in good standing
in each jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Company has the corporate power and
authority to own or hold under lease the properties it purports to own or hold
under lease, to transact the business it transacts and proposes to transact, to
execute and deliver this Agreement and to perform the provisions of the
Transaction Documents.
2.2 AUTHORIZATION, ETC. This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, and each of the
Transaction Documents constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
2.3 DISCLOSURE. None of the written statements, documents or other
written materials furnished by, or on behalf of, the Company to the Holders in
connection with the negotiation, execution and delivery of this Agreement
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein or herein not misleading in
light of the circumstances in which they were made. There is no fact which the
Company has not disclosed to the Holders which materially affects adversely or,
so far as the Company can now foresee, will materially affect adversely the
business, prospects, profits, Properties or condition (financial or otherwise)
of the Company and its Subsidiaries, taken as a whole, or the ability of the
Company to perform its obligations set forth in the Transaction Documents.
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2.4 MATERIAL SUBSIDIARIES. ▇▇▇▇▇ Transportation International (H.K.)
Ltd., a Hong Kong corporation ("▇▇▇▇▇ ▇▇▇▇ KONG"), FCI Holdings International
B.V., a Netherlands corporation ("FCI HOLDINGS"), ▇▇▇▇▇ Companies Canada Inc., a
New Brunswick corporation ("▇▇▇▇▇ CANADA"), and ▇▇▇▇▇ Air Freight, Inc., a Texas
corporation ("▇▇▇▇▇ AIR FREIGHT"), are the only Material Subsidiaries as of the
Effective Date. All of the outstanding shares of capital stock or similar equity
interests of each Majority-Owned Foreign Material Subsidiary which are being
pledged by the Company to the Collateral Agent have been validly issued, are
fully paid and nonassessable and are owned by the Company free and clear of any
Lien.
2.5 COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution,
delivery and performance by the Company of this Agreement, the Intercreditor
Agreement and the Pledge Agreements will not
(a) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any Property
of the Company or any Subsidiary under, any indenture, mortgage, deed of
trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which the Company or
any Subsidiary is bound or by which the Company or any Subsidiary or any
of their respective properties may be bound or affected,
(b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of
any court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary, or
(c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or
any Subsidiary.
2.6 GOVERNMENTAL AUTHORIZATIONS, ETC. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by the Company of this Agreement, the Intercreditor Agreement and the Pledge
Agreements.
2.7 LITIGATION; OBSERVANCE OF AGREEMENTS, STATUTES AND ORDERS.
(a) There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary or any Property of the Company or any Subsidiary in any
court or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under
any term of any agreement or instrument to which it is a party or by
which it is bound, or any order, judgment, decree or ruling of any
court, arbitrator or Governmental Authority or is in violation of any
applicable law, ordinance, rule or regulation (including without
limitation Environmental Laws) of any Governmental Authority, which
default or violation, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
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2.8 NO DEFAULTS. No event has occurred and is continuing and no
condition exists which, upon the effectiveness of the amendments provided for in
this Agreement, would constitute a Default or Event of Default.
3. CONDITIONS PRECEDENT
Each of the amendments set forth in Section 4 shall become effective on
the date (the "EFFECTIVE DATE") upon which all of the following conditions
precedent have been satisfied, such satisfaction to be evidenced by the
execution and delivery of the applicable counterparts of this Agreement by the
Required Holders and the Company:
3.1 CONSENT OF REQUIRED HOLDERS. The Company and the Required Holders
shall have executed and delivered this Agreement.
3.2 OPINIONS OF COUNSEL. You shall have received opinions in form and
substance satisfactory to you, dated the Effective Date, from
(a) ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., general counsel for the Company,
covering the matters set forth in EXHIBIT B, and covering such other
matters incident to the transactions contemplated hereby as you or your
special counsel may reasonably request (and the Company hereby directs
▇▇. ▇▇▇▇▇▇▇ to deliver such closing opinion to you),
(b) ▇▇▇▇ & ▇▇▇▇▇▇, your special counsel in connection with the
transactions contemplated hereby, covering such matters incident to such
transactions as you may reasonably request,
(c) special New Brunswick counsel to the Company and to ▇▇▇▇▇
Canada in connection with the transactions contemplated hereby, covering
such matters incident to such transactions as you may reasonably
request, and
(d) special Hong Kong counsel to the Company and to ▇▇▇▇▇ ▇▇▇▇
Kong in connection with the transactions contemplated hereby, covering
such matters incident to such transactions as you may reasonably
request.
3.3 WARRANTIES AND REPRESENTATIONS TRUE; COMPLIANCE WITH AGREEMENT.
(a) WARRANTIES AND REPRESENTATIONS TRUE. The warranties and
representations contained in Section 2 shall be true on the Effective
Date with the same effect as though made on and as of that date.
(b) COMPLIANCE WITH THIS AGREEMENT. The Company shall have
performed and complied with all agreements and conditions contained
herein that are required to be performed or complied with by the Company
on or prior to the Effective Date, and such performance and compliance
shall remain in effect on the Effective Date.
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3.4 OFFICER'S CERTIFICATES. You shall have received:
(a) a certificate dated the Effective Date and signed by a senior
officer of the Company, substantially in the form of EXHIBIT C; and
(b) a certificate dated the Effective Date and signed by the
Secretary or an Assistant Secretary of the Company, substantially in the
form of EXHIBIT D.
3.5 PLEDGE AGREEMENT. You shall have received a copy, certified as true
and correct by the Company, of the Pledge Agreement between the Company and the
Collateral Agent, related to the pledge of capital stock in each of ▇▇▇▇▇ Canada
and ▇▇▇▇▇ ▇▇▇▇ Kong, substantially in the form of EXHIBIT E, duly executed and
delivered by each of the parties thereto (together with any additional pledge
agreements executed pursuant to Section 9.8 of the Amended Note Agreement, in
each case, as amended from time to time, the "PLEDGE AGREEMENTS"). All stock
certificates, if any, and undated stock powers executed in blank required to be
executed and delivered to the Collateral Agent by the Company in accordance with
the terms of the Pledge Agreements shall have been so executed and delivered,
and the Company shall provide you with copies thereof, certified as true and
correct by the Company. All consents of any Majority-Owned Foreign Material
Subsidiary, its shareholders or any other Person, required under applicable law
or any organizational document to permit the pledge of such Majority-Owned
Foreign Material Subsidiary's Foreign Material Subsidiary Stock pursuant to the
Pledge Agreement shall have been obtained, and the Company shall provide you
with copies thereof, certified as true and correct by the Company.
3.6 BANK AGREEMENT. The Company shall have delivered to you a fully
executed copy of the Bank Agreement as in effect on the Effective Date,
certified as true, complete and correct by a Responsible Officer of the Company,
and such agreement shall be in form and substance satisfactory to you.
3.7 INTERCREDITOR AGREEMENT. An intercreditor and collateral agency
agreement substantially in the form of EXHIBIT F (as amended from time to time,
the "INTERCREDITOR AGREEMENT") shall have been duly executed and delivered by
the Holders, NationsBank of Texas, N.A., as agent for the Banks, the Collateral
Agent, the Company and ▇▇▇▇▇ Air Freight, and a copy thereof evidencing such due
execution and delivery shall be delivered to you, certified as true and correct
by the Company.
3.8 EXPENSES. All fees and disbursements required to be paid pursuant to
Section 6.2 shall have been paid in full.
3.9 PROCEEDINGS SATISFACTORY. All proceedings taken in connection with
the execution and delivery of this Agreement and the transactions contemplated
hereby shall be satisfactory to the Holders and their special counsel; and the
Holders and their special counsel shall have received copies of such documents
and papers as they may reasonably request in connection therewith.
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4. AMENDMENTS TO EXISTING NOTE AGREEMENT, EXISTING NOTES AND SUBSIDIARY
GUARANTY.
Each of the Company and, subject to the satisfaction of the conditions
set forth in Section 3, the Holders, hereby consents and agrees to the
amendments to the Existing Note Agreement and the Existing Notes, and each other
provision, set forth in this Section 4.
4.1 AMENDMENT TO SECTION 9.6 OF THE EXISTING NOTE AGREEMENT. Section 9.6
of the Existing Note Agreement is hereby amended to read in its entirety as
follows:
9.6 PROVISION OF GUARANTIES.
The Company will cause each Person that becomes a Domestic
Material Subsidiary after the Closing to execute and deliver to each of
the holders of the Notes, immediately upon becoming a Domestic Material
Subsidiary, a duly authorized Joinder Agreement in the form of Exhibit
F, a Secretary's Certificate substantially in the form of Exhibit G, and
an opinion of counsel to the Domestic Material Subsidiary regarding the
authorization, execution and delivery of such Joinder Agreement, and its
enforceability, which opinion shall be satisfactory in all respects to
the Required Holders, provided, however, that upon the release by all
other holders of Debt of the Company and its Subsidiaries, of all of the
subsidiary guaranties held by such holders in a manner and pursuant to
documentation which, in the reasonable opinion of the holders of all of
the Notes, fully releases such subsidiary guaranties, each of the
holders of the Notes shall release the Guarantors from their obligation
under the Subsidiary Guaranty.
4.2 AMENDMENT TO SECTION 9.7 OF THE EXISTING NOTE AGREEMENT. Section 9.7
of the Existing Note Agreement is hereby amended to read in its entirety as
follows:
9.7 PARI PASSU RANKING.
To the extent that proceeds from the Collateral would not at any
time be sufficient to satisfy in full all obligations owing in respect
of the Notes and the Subsidiary Guaranty at such time, the portion of
such obligations which would not be so satisfied shall rank pari passu,
without preference or priority, with all other outstanding, unsecured,
unsubordinated obligations of the Company and the Guarantors (as the
case may be), present and future, that have not been accorded by law
preferential rights.
4.3 ADDITION OF SECTION 9.8 TO THE EXISTING NOTE AGREEMENT. Section 9 of
the Existing Note Agreement is hereby amended to add thereto Section 9.8 to read
in its entirety as follows:
9.8 PLEDGE OF FOREIGN MATERIAL SUBSIDIARY STOCK.
After the First Amendment Effective Date, the Company will, and
will cause each Domestic Material Subsidiary that directly owns Foreign
Material
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Subsidiary Stock that has not been pledged by such Person to the
Collateral Agent pursuant to the Pledge Agreements, to execute and
deliver to the Collateral Agent, within 30 days of so becoming the owner
of such Foreign Material Subsidiary Stock, all further instruments and
documents (including, without limitation, a pledge agreement, joinder
agreement or amendment to a Pledge Agreement) and take all further
action (including, without limitation, delivery to the Collateral Agent
of stock certificates, if any, and undated stock powers executed in
blank) that is necessary or that otherwise may be reasonably requested
by the Required Holders, in order to maintain a perfected security
interest in favor of the Collateral Agent, for the equal and ratable
benefit of each of the Banks and the holders from time to time of the
Notes, in not less than 65% of the issued and outstanding capital stock
of or similar equity interests in each of the Majority-Owned Foreign
Material Subsidiaries owned by each such Person. The Company will, and
will cause each such Subsidiary to, provide to the holders of the Notes
a Certificate of its Secretary or another responsible officer, and an
opinion of counsel to such Person, regarding the authorization,
execution and delivery of such documents and instruments, and their
enforceability, which certificate and opinion shall be satisfactory in
all respects to the Required Holders. Notwithstanding the foregoing, if
(a) all of the obligations of the Company and its
Subsidiaries to the Banks under the Bank Agreement, together with
any and all extensions, renewals or refundings of any such
obligations, shall have been indefeasibly satisfied in full in
cash, or
(b) the holders of all such obligations shall agree to
release any or all of the Collateral from the Lien of any Pledge
Agreement, in a manner and pursuant to documentation which, in
the reasonable opinion of the holders of all of the Notes, fully
releases such Collateral as security for all such obligations,
then each of the holders of the Notes shall thereupon agree to release
such Collateral from the Lien of such Pledge Agreement, provided no
holders of any Debt of the Company or its Subsidiaries shall have been,
or shall at any time be,
(i) given a pledge of or granted a security interest in
any Foreign Material Subsidiary Stock, or
(ii) given a Guaranty of such Debt by any Foreign
Material Subsidiary,
unless
(A) in the case of clause (i) above, the pledgor or
grantor with respect to such Foreign Material Subsidiary Stock
shall contemporaneously execute and deliver, to each of the
holders of the Notes, a pledge agreement, joinder agreement or
amendment to a Pledge Agreement) and take all further action
(including, without limitation, delivery of stock certificates,
if any, and undated stock powers
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executed in blank) that is necessary or that otherwise may be
reasonably requested by the Required Holders, in order to grant
to or for the equal and ratable benefit of the holders of the
Notes and such holder or holders of Debt (subject to
intercreditor terms among such parties that shall be no less
favorable to the holders of the Notes than the Intercreditor
Agreement), a perfected security interest in all such Foreign
Material Subsidiary Stock pledged by such Person, together with
a Certificate of such Person's Secretary or another responsible
officer, and an opinion of counsel to such Person, regarding the
authorization, execution and delivery of such documents and
instruments, and their enforceability, which certificate and
opinion shall be satisfactory in all respects to the Required
Holders, and
(B) in the case of clause (ii) above, such Foreign
Material Subsidiary shall contemporaneously execute and deliver,
to each of the holders of the Notes, a duly authorized Joinder
Agreement substantially in the form of Exhibit F, a Secretary's
Certificate substantially in the form of Exhibit G, and an
opinion of counsel to the Foreign Material Subsidiary regarding
the authorization, execution and delivery of such Joinder
Agreement, and its enforceability, which opinion shall be
satisfactory in all respects to the Required Holders.
4.4 AMENDMENT TO SECTION 10.4(a) OF THE EXISTING NOTE AGREEMENT. Clause
(a) of Section 10.4 of the Existing Note Agreement is hereby amended to read in
its entirety as follows:
(a) Debt of
(i) a Restricted Subsidiary
(A) outstanding on the date of Closing
and disclosed in Schedule 10.4, provided that
such Debt may not be extended, renewed or
refunded except as otherwise permitted by this
Agreement, or
(B) constituting a Guaranty of the
obligations of the Company under
(I) this Agreement, or
(II) the Bank Agreement, provided
that the aggregate principal amount of such
Debt of any Restricted Subsidiary may not
exceed $100,000,000, and
(ii) up to an aggregate amount not to exceed
Canadian $25,000,000 pursuant to the agreement disclosed
in Schedule 10.4;
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4.5 AMENDMENT TO SECTION 10.5(a)(iv) OF THE EXISTING NOTE AGREEMENT.
Clause (iv) of Section 10.5(a) of the Existing Note Agreement is hereby amended
to read in its entirety as follows:
(IV) CLOSING DATE LIENS; PLEDGE AGREEMENTS -- Liens
existing on the date of this Agreement and securing the Debt of
the Company and its Restricted Subsidiaries referred to in
Schedule 5.15; and Liens created under the Pledge Agreements;
4.6 AMENDMENT TO SECTION 11 OF THE EXISTING NOTE AGREEMENT. Section 11
of the Existing Note Agreement is hereby amended to replace the "." at the end
of paragraph (j) thereof with "; or" and add thereto paragraph (k) and paragraph
(l) to read in their entirety as follows:
(k) (i) the Company, any Guarantor, or any pledgor under
any Pledge Agreement, shall default in the due performance or
observance of any term, covenant or agreement in any of the
Financing Documents (other than this Agreement) (subject to
applicable grace or cure periods, if any), or (ii) any Financing
Document shall fail to be in full force and effect or to give the
Collateral Agent or the holders of the Notes any material part of
the Liens, rights, powers and privileges purported to be created
thereby; or
(l) there shall occur an Event of Default under and as
defined in the Bank Agreement.
4.7 AMENDMENT TO ANNEX II OF THE EXISTING NOTE AGREEMENT. Annex II of
the Existing Note Agreement is hereby amended to modify in their entirety or
add, each in their proper alphabetical order, the following defined terms:
BANK AGREEMENT -- means the Credit Agreement, dated as of March
__, 1998, among each of the Company, certain subsidiaries of the
Company, as guarantors, the Banks and NationsBank of Texas, N.A., as
agent for the Banks, as such agreement may from time to time be amended,
modified, renewed, refunded, refinanced or restated.
BANKS -- means, collectively, the "Lenders" (as defined in the
Bank Agreement) which are parties to the Bank Agreement from time to
time.
COLLATERAL -- means any and all Property that at any time is
granted to the Collateral Agent or any other Person, pursuant to any
Pledge Agreement or any other document, agreement or instrument, as
security for the payment of any or all of the obligations of the Company
under this Agreement and the Notes.
COLLATERAL AGENT -- means NationsBank of Texas, N.A., solely in
its capacity as collateral agent under the Pledge Agreements and the
Intercreditor Agreement, and together with any successor or co-agent
that becomes such in
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accordance with the provisions of any Pledge Agreement and the
Intercreditor Agreement.
DOMESTIC MATERIAL SUBSIDIARY -- means, at any time, any Material
Subsidiary at such time which is organized and existing under the laws
of the United States of America, any state thereof or the District of
Columbia.
FINANCING DOCUMENTS -- means, collectively, each of this
Agreement, the Notes, the Subsidiary Guaranty, each Joinder Agreement in
the form of Exhibit F, the Intercreditor Agreement, the Pledge
Agreements, and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.
FIRST AMENDMENT AGREEMENT -- means the First Amendment Agreement,
dated as of March 1, 1998, among the Company and the holders of the
Notes signatory thereto, pursuant to which this Agreement has been
amended in accordance with the terms thereof.
FIRST AMENDMENT EFFECTIVE DATE -- means "Effective Date" as
defined in the First Amendment Agreement.
FOREIGN MATERIAL SUBSIDIARY -- means, at any time, any Material
Subsidiary at such time which is not a Domestic Material Subsidiary.
FOREIGN MATERIAL SUBSIDIARY STOCK -- means the capital stock or
similar equity interests of any Majority-Owned Foreign Material
Subsidiary.
GUARANTOR -- at any time, means any Material Subsidiary that is a
party to the Subsidiary Guaranty at such time, whether by execution of
the Subsidiary Guaranty or by execution of a joinder agreement in the
form attached thereto.
INTERCREDITOR AGREEMENT -- has the meaning assigned to such term
in the First Amendment Agreement.
MAJORITY-OWNED FOREIGN MATERIAL SUBSIDIARY -- means, at any time,
any Foreign Material Subsidiary at such time, in which the Company and
the Domestic Material Subsidiaries directly own, in the aggregate, at
least 50% of the Voting Stock of such Foreign Material Subsidiary.
PLEDGE AGREEMENTS -- has the meaning assigned to such term in the
First Amendment Agreement.
4.8 AMENDMENT AND RESTATEMENT OF EXHIBIT A TO THE EXISTING NOTE
AGREEMENT. The form of 6.43% Senior Note Due April 15, 2003 set forth as Exhibit
A to the Existing Note Agreement is hereby amended and restated, in its
entirety, to be in the form of EXHIBIT A attached to this Agreement. All
references to "Exhibit A" in the Amended Note Agreement shall, if in reference
to a date on or after the Effective Date, refer to the form of 6.43% Senior Note
Due April 15, 2003 as amended and restated hereby.
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4.9 AMENDMENT OF EXISTING NOTES. The forms of the respective Existing
Notes are hereby amended in their entirety to conform to the form of 6.43%
Senior Note Due April 15, 2003 attached hereto as EXHIBIT A. On the Effective
Date, each of the terms of each outstanding Existing Note shall be deemed to be
amended to conform with such form, without any further action on the part of the
Company or any holder of any Existing Note. Upon surrender of any outstanding
Existing Note, the Company shall deliver to the registered holder thereof an
Amended Note in the form attached hereto as Exhibit A, dated the date of the
last interest payment on such surrendered Existing Note and in the outstanding
principal amount of such Existing Note, all in accordance with the provisions of
Section 13.2 of the Amended Note Agreement.
4.10 AMENDMENT OF SUBSIDIARY GUARANTY. The Subsidiary Guaranty is hereby
amended to delete as parties thereto each of ▇▇▇▇▇ ▇▇▇▇ Kong, FCI Holdings,
▇▇▇▇▇ Canada and any other Foreign Material Subsidiary party thereto, and on and
after the Effective Date, each such Foreign Material Subsidiary shall hereby be
released from all of its obligations under the Subsidiary Guaranty.
5. DIRECTION TO COLLATERAL AGENT; AFFIRMATION OF OBLIGATIONS.
5.1 HOLDER AUTHORIZATION AND CONSENT. Subject to the satisfaction of the
conditions set forth in Section 3, each Holder hereby authorizes and directs the
Collateral Agent to execute and deliver the Pledge Agreements and take such
action as is contemplated thereby.
5.2 REFERENCES. Each reference to the Agreement (as defined in the
Existing Note Agreement) or the Notes (as defined in the Existing Note
Agreement) in such documents shall be deemed and construed to refer to such
documents, as amended from time to time in accordance with the terms of the
Agreement, including, without limitation, by this Agreement (unless explicitly
stated to the contrary therein), and such documents are hereby modified
accordingly.
5.3 RIGHTS CONTINUE. The terms of this Agreement shall not operate as a
waiver by the holders of the Existing Notes of, or otherwise prejudice any such
holder's rights, remedies or powers under, the Existing Note Agreement, the
Existing Notes or under applicable law, except to the extent set forth herein.
Except as expressly provided in this Agreement:
(a) no terms and provisions of any agreement are modified or
changed by this Agreement; and
(b) the terms and provisions of the Existing Note Agreement and
the Existing Notes shall continue in full force and effect.
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5.4 CONTINUITY AND AFFIRMATION OF OBLIGATIONS. Notwithstanding any other
provision hereof or of any other document or agreement, the indebtedness of the
Company under the Existing Note Agreement evidenced by the Existing Notes shall
not be or be deemed to be paid or discharged or novated hereby or by the Amended
Notes and shall continue in full force and effect as amended hereby. The Company
hereby acknowledges and reaffirms all of its obligations and duties under the
Amended Note Agreement, the Amended Notes, the Intercreditor Agreement and the
Pledge Agreements.
6. MISCELLANEOUS.
6.1 SUCCESSORS AND ASSIGNS; EFFECT OF AMENDMENT. This Agreement shall be
binding upon, and shall inure to the benefit of, the successors and assigns of
the parties hereto and the holders from time to time of the Notes. Except as
amended herein, the terms and provisions of the Existing Note Agreement and the
Existing Notes are hereby ratified, confirmed and approved in all respects.
6.2 FEES AND EXPENSES. On the Effective Date, the Company shall pay all
reasonable costs and expenses of the Holders relating to this Agreement,
including, but not limited to, the statement for reasonable fees and
disbursements of the Holders' special counsel presented to the Company on or
prior to the Effective Date. The Company will also pay, upon receipt of any
statement thereof, each additional statement for reasonable fees and
disbursements of the Holders' special counsel rendered after the Effective Date
in connection with this Agreement. The obligations of the Company under this
Section 6.2 shall survive the termination of this Agreement.
6.3 SURVIVAL. All warranties, representations, certifications and
covenants made by the Company in this Agreement or in any certificate or other
instrument delivered by it or on its behalf under this Agreement shall be
considered to have been relied upon by the Holders and shall survive the
execution of this Agreement, regardless of any investigation made by or on
behalf of any Holder. All such statements made herein or in any such certificate
or other instrument shall constitute warranties and representations of the
Company under this Agreement and the Amended Note Agreement.
6.4 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.
6.5 SECTION HEADINGS, ETC. The titles of the Sections hereof appear as a
matter of convenience only, do not constitute a part hereof and shall not affect
the construction hereof. The words "herein," "hereof," "hereunder" and "hereto"
refer to this Agreement as a whole and not to any particular Section or other
subdivision. References to Sections are, unless otherwise specified, references
to Sections of this Agreement. References to Annexes, Schedules and Exhibits
are, unless otherwise specified, references to Annexes, Schedules and Exhibits
attached to this Agreement.
6.6 DUPLICATE ORIGINALS; EXECUTION IN COUNTERPART. Two or more duplicate
originals of this Agreement may be signed by the parties, each of which shall be
an original but all of which together shall constitute one and the same
instrument. This Agreement may be
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executed in one or more counterparts and shall be effective when at least one
counterpart shall have been executed by each party to this Agreement, and each
set of counterparts which, collectively, show execution by each such party to
this Agreement shall constitute one duplicate original.
[Remainder of page is intentionally blank. Next page is a signature page.]
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IN WITNESS WHEREOF, the Company and the Holders have executed this
Agreement as of the date first above written.
▇▇▇▇▇ COMPANIES, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
The foregoing is hereby
agreed to as of the
date thereof.
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
BY: LINCOLN INVESTMENT MANAGEMENT, INC.,
ITS ATTORNEY-IN-FACT
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Second Vice President
ALLIED LIFE INSURANCE COMPANY
BY: LINCOLN INVESTMENT MANAGEMENT, INC.,
ITS ATTORNEY-IN-FACT
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Second Vice President
LINCOLN NATIONAL REASSURANCE COMPANY
BY: LINCOLN INVESTMENT MANAGEMENT, INC.,
ITS ATTORNEY-IN-FACT
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Second Vice President
16
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By /s/ ▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Investment Officer
THE EQUITABLE OF COLORADO, INC.
By /s/ ▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Investment Officer
17
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President - Investments
By /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Assistant Vice President
18
AID ASSOCIATION FOR LUTHERANS
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President - Investments
By /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Second Vice President - Securities
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NATIONWIDE LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
Title: Vice President - Fixed Income Securities
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
Title: Vice President - Fixed Income Securities
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WEST COAST LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President - Investments
21
TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Investment Officer
22
AMERICAN STATES LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
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MINNESOTA FIRE & CASUALTY COMPANY
By /s/ J. ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: J. ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President -
Short Term Fixed Income Portfolio Manager
24
BERKSHIRE LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Investment Officer
