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Exhibit 10.2
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MODIFICATION OF
NOTE PURCHASE AGREEMENTS
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THIS MODIFICATION OF NOTE PURCHASE AGREEMENTS (this
"MODIFICATION"), dated as of November 21, 1996, is entered into by and among
BLACK BOX CORPORATION OF PENNSYLVANIA (formerly known as Black Box Corporation;
the "COMPANY") and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA ("PRUDENTIAL"),
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES ("EQUITABLE"),
EQUITABLE VARIABLE LIFE INSURANCE COMPANY ("EQUITABLE/V") and MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY ("MASSMUTUAL", and together with Prudential,
Equitable and Equitable/V, the "NOTEHOLDERS").
W I T N E S S E T H :
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WHEREAS, the Company and Prudential, Equitable, Equitable/V
and MassMutual are parties to those certain separate Note Purchase Agreements,
each dated as of May 6, 1994 (the "AGREEMENTS");
WHEREAS, the Company desires to make a Stock Payment to Black
Box Corporation, a Delaware corporation (formerly known as MB Communications,
Inc.; the "GUARANTOR") in the amount of $43,670,000 (the "SPECIAL DIVIDEND"),
for the purpose of repaying certain Indebtedness of the Guarantor to the
Company in the amount of $43,670,000 (the "INTERCOMPANY DEBT"), and to make
certain other modifications to the Agreements.
WHEREAS, the Company has requested and the Noteholders have
agreed to consent to the payment of the Special Dividend and to those
modifications of the Agreements pursuant to paragraph 11C thereof;
WHEREAS, each of the Agreements provides that it may be
amended (other than to make certain types of modifications not requested by the
Company) with the consent of the holders of not less than two-thirds in
aggregate principal amount of the Notes at any time outstanding under the
Agreements;
WHEREAS, Prudential, Equitable, Equitable/V and MassMutual
are, on the date hereof, the holders of 100% of the aggregate principal amount
of the Notes outstanding under the Agreements; and
NOW THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Noteholders hereby agree as follows:
1. DEFINITIONS. Unless the context otherwise requires,
capitalized terms used and not otherwise defined in this Modification shall
have the meanings assigned to them in the Agreements.
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2. MODIFICATIONS TO NOTE PURCHASE AGREEMENTS. The Company and
the Noteholders agree to the following modifications:
(a) Paragraph 6A of each of the Agreements is amended in its
entirety to read as follows:
6A. CONSOLIDATED NET WORTH. Consolidated Net Worth of the
Company shall not at any time be less than $10,000,000.
(b) Paragraph 6B of each of the Agreements is amended in its
entirety to read as follows:
6B. CASH FLOW OF THE COMPANY. As of the last day of each
fiscal quarter, the ratio of (a) the Consolidated Net Income of the Company and
its consolidated Subsidiaries, plus the amortization expense related to
intangible assets of the Company and its consolidated Subsidiaries for the four
(4) most recently completed fiscal quarters to (b) the aggregate Indebtedness
of the Company and its consolidated Subsidiaries determined in accordance with
generally accepted accounting principles shall not be less than .25 to 1.
(c) Paragraph 6H of each of the Agreements is amended in its
entirety to read as follows:
6H. DIVIDENDS AND RELATED DISTRIBUTIONS. The Company will
not, and will not permit any of its Subsidiaries to, declare or make any Stock
Payment, except as follows:
(i) Stock Payments to the Guarantor for the purposes of
paying reasonable administrative costs and salaries of the Guarantor's
employees, paying taxes and paying expenses incurred in the ordinary course of
business; provided, that no Stock Payment pursuant to this clause (i) may be
made (a) at any time when a Default or Event of Default exists or would occur
after giving effect to such Stock Payment or (b) if, after giving effect to
such Stock Payment, the aggregate amount of Stock Payments made during any
fiscal year of the Company, together with any loans and advances made pursuant
to paragraph 6G(iv) during such fiscal year, would exceed $1,500,000;
(ii) A Stock Payment to the Guarantor for the purpose of
retiring in full Indebtedness of the Guarantor to the Company in the aggregate
principal amount of $43,670,000;
(iii) A Subsidiary of the Company may declare and make Stock
Payments if all of the capital stock of such Subsidiary is owned by the Company
or by a direct or indirect Wholly-Owned Subsidiary of the Company.
(d) Paragraph 6M of each of the Agreements is amended in its
entirety to read as follows:
6M. CAPITAL EXPENDITURES. The Company will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures
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on or after the date hereof, except for Capital Expenditures not in excess of
$3,500,000 in the aggregate by the Guarantor and its respective Subsidiaries in
any fiscal year of the Company.
(e) The following definitions in paragraph 10B of each of the
Agreements are amended in their entirety to read as follows:
"BB TECH LICENSE AGREEMENT" shall mean the Trademark/Service
▇▇▇▇ License Agreement, dated as of October 1, 1992, between the Company and BB
Technologies, Inc., as amended by Amendment No. 1 to Trademark/Service ▇▇▇▇
License Agreement, dated as of December 21, 1993, as further amended by
Amendment No. 2 to Trademark/Service ▇▇▇▇ License Agreement dated as of May 6,
1994, and as further amended by Amendment No. 3 to Trademark/Service ▇▇▇▇
License Agreement, dated as of July 1, 1995, and pursuant to paragraph 6O.
"BANK CREDIT AGREEMENT" shall mean, collectively, the Credit
Agreement, dated as of May 6, 1994, between the Bank and the Company as amended
by that certain First Amendment to Credit Agreement, dated as of March 30,
1995, by that certain Second Amended to Credit Agreement, dated as of August 1,
1995, by that certain Third Amendment to Credit Agreement, dated as of April 1,
1996 and by that certain Fourth Amendment to Credit Agreement dated as of
November 21, 1996, and any and all documents delivered in connection therewith,
including, without limitation, the Guaranty and Suretyship Agreement, dated as
of May 6, 1994, by the Guarantor in favor of the Bank as amended by that
certain First Amendment to Guaranty and Suretyship Agreement, dated as of March
30, 1995.
3. CONSENTS TO BB TECH LICENSE AGREEMENT AMENDMENT AND BANK
CREDIT AGREEMENT AMENDMENT.
(a) Pursuant to paragraph 6O of each of the Agreements, the
Noteholders consent to the amendment to the BB Tech License Agreement in
substantially the form attached to this Modification as Exhibit A (the "THIRD
LICENSE AGREEMENT AMENDMENT").
(b) Pursuant to Section 4.18 of the Guarantee Agreement, the
Noteholders consent to the Fourth Amendment to Credit Agreement, dated as of
November 21, 1996, between the Bank and the Company in substantially the form
attached to this Modification as Exhibit B the ("FOURTH AMENDMENT").
4. INDUCING REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to each Noteholder as follows:
(a) This Modification and the payment of the Special Dividend
have each been duly authorized by all necessary corporate action on the part of
the Company. This Modification, when executed and delivered by the Company will
constitute, the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by (i) bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). Except for the consent of the Bank which has been delivered
contemporaneously herewith, no further consent of any other Person is required
for the execution, delivery and performance of this Modification.
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(b) The execution, delivery and performance by the Company of
this Modification and the declaration and payment of the Special Dividend 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 Subsidiary under, any indenture, mortgage, deed of trust, bank loan or
credit agreement, 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, including without limitation the agreements or instruments set forth
in Schedule 8G to the Agreements, (ii) 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 (iii) violate any provision of any statute or
other rule or regulation of any Governmental Authority applicable to the
Company or any Subsidiary.
(c) 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 Modification or the declaration and payment of the Special Dividend.
(d) After giving effect to each of this Modification and the
declaration and payment of the Special Dividend, (i) no Default or Event of
Default shall have occurred and be continuing, and (ii) the Company shall
deliver to each of the Noteholders an Officer's Certificate, dated as of the
Effective Date (as defined below), to such effect.
(e) The term of the Services Agreement has expired and none
of the parties to the Services Agreement has exercised any option to renew or
extend its term.
5. CONDITIONS TO EFFECTIVENESS. This Modification shall
become effective (the "EFFECTIVE DATE") when and only when each of the
following conditions has been satisfied:
(a) AMENDMENT TO BANK CREDIT AGREEMENT. The Fourth Amendment
and all other agreements delivered in connection with the Fourth Amendment
shall have been duly executed and delivered by the parties thereto, in each
case (including without limitation all schedules and exhibits thereto) in
substantially the form attached hereto as Exhibit B, and on the date hereof the
Fourth Amendment and all such other certificates, documents and agreements
shall be in full force and effect and no default or event of default shall
exist thereunder and the Noteholders shall have received an Officer's
Certificate from the Company to that effect.
(b) REPRESENTATION AND WARRANTIES TRUE AND CORRECT. The
representations and warranties of the Company made in this Modification shall
be true and correct in all material respects on and as of the Effective Date
and the Noteholders shall have received an Officer's Certificate from the
Company to that effect and covering the matters described in Section 4(d) of
this Modification.
(c) CONSENT. The Noteholders shall have received from the
Bank written consent to the execution and delivery by the Company of this
Modification.
(d) FEES AND EXPENSES. The Company shall have paid (a) the
fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel to the Noteholders
and (b) any expenses of the Noteholders, including, without limitation fees,
expenses and disbursements of counsel, in connection with this Modification, in
each case as required under Section 11B of each of the Agreements.
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6. NO OTHER AMENDMENTS. Except as otherwise expressly amended
above, each of the Agreements shall remain in full force and effect and is
hereby ratified and confirmed.
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IN WITNESS WHEREOF, the parties have caused this Modification
of Note Purchase Agreements to be duly executed and delivered by their proper
and duly authorized officers, as of the day and year first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Investment Officer
EQUITABLE VARIABLE LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Investment Officer
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Managing Director
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BLACK BOX CORPORATION OF
PENNSYLVANIA
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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CONSENT OF GUARANTOR
BLACK BOX CORPORATION, a Delaware corporation (formerly known
as MB Communications, Inc.), is the Guarantor under that certain Guarantee
Agreement (the "GUARANTEE"), dated as of May 6, 1994, made by the Guarantor in
favor of each holder of any Notes (the "HOLDERS"), and as such hereby consents
to that certain Modification of Note Purchase Agreements dated as of November
21, 1996, by and among Black Box Corporation of Pennsylvania and The Prudential
Insurance Company of America, The Equitable Life Assurance Society of the
United States, Equitable Variable Life Insurance Company and Massachusetts
Mutual Life Insurance Company (the "MODIFICATION") and the amendments and
agreements contained therein and confirms and agrees that, notwithstanding the
Modification and the effectiveness of the amendments and agreements contained
therein, the Guarantee is, and shall continue to be, in full force and effect
and is hereby confirmed and ratified in all respects. Nothing herein is
intended or shall be deemed to limit any Holder's rights under the Guarantee to
take actions without the consent of the undersigned.
Dated as of November 21, 1996
BLACK BOX CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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EXHIBIT A
FORM OF THIRD LICENSE AGREEMENT AMENDMENT
(See Attached)
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EXHIBIT B
FORM OF FOURTH AMENDMENT TO CREDIT AGREEMENT
(See Attached)