Exhibit 4(a)(2)
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XXXXXX INDUSTRIES HOLDINGS, INC.
XXXXXX INDUSTRIES INC.
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FIRST AMENDMENT
Dated as of July 30, 2002
To
NOTE AGREEMENT
Amended and Restated as of November 6, 1998
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$85,000,000 Principal Amount
9.36% Senior Notes
Due January 31, 2005
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FIRST AMENDMENT TO NOTE AGREEMENT
This First Amendment dated as of July 30, 2002 to the Note Agreement,
amended and restated as of November 6, 1998 (this "Amendment"), is among Xxxxxx
Industries Holdings, Inc., a Delaware corporation ("Holdings"), Xxxxxx
Industries Inc., a Delaware corporation (the "Company", and together with
Holdings collectively referred to as the "Issuers") and the institutions listed
on the signature pages hereto (collectively, the "Noteholders").
RECITALS:
A. The Company, Holdings and the Noteholders have heretofore entered
into that certain Note Agreement amended and restated as of November 6, 1998
(the "Note Agreement"). The Company has heretofore issued its $85,000,000 9.36%
Senior Notes, due January 31, 2005 (the "Notes") pursuant to the Note Agreement.
The Noteholders are the holders more than 2/3 of the principal amount of the
Notes presently outstanding.
B. The Company and Holdings and the Noteholders now desire to amend
certain provisions of the Note Agreement as of July 30, 2002 (the "Effective
Date") in the respects, but only in the respects, hereinafter set forth.
C. All requirements of law have been fully complied with and all other
acts and things necessary to make this Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this Amendment set forth in Section
5 hereof, the Issuers and the Noteholders, for good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, do hereby agree as
follows:
SECTION 1 Definitions; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Note Agreement shall have
the meaning assigned to such term in the Note Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Note Agreement shall from and after the date hereof refer to
the Note Agreement as amended hereby.
SECTION 2 Amendment of Section 8.3 of the Note Agreement. The introductory
paragraph of Section 8.3 of the Note Agreement is amended by inserting after the
words "any Lien on its properties or assets, whether now owned or hereafter
acquired" and before the comma following immediately thereafter the
parenthetical phrase "(unless, concurrently with the incurrence, assumption or
creation of such Lien, the Company makes, or causes to be made, effective
provision whereby the Notes are equally and ratably secured by a Lien on the
same property or assets)".
SECTION 3 Amendment of Section 8.4 of the Note Agreement. The first
sentence of Section 8.4(b) of the Note Agreement is amended in its entirety to
read as follows:
"The Company will not permit at any time Debt of its
Restricted Subsidiaries (other than Debt owed to the Company
or another Restricted Subsidiary) and Secured Debt (together
"Priority Debt") to be incurred unless either (A) after giving
effect thereto, (i) such Priority Debt would be permitted to
be outstanding under paragraph (a) of this Section 8.4, and
(ii) the aggregate amount of such Priority Debt at any time
outstanding would not exceed the sum of $10,000,000 plus 15%
of Consolidated Net Tangible Assets or (B) both (i) such
Priority Debt consists of guarantees by all or a portion of
the Restricted Subsidiaries of Debt of the Company or Holdings
(which Debt of the Company or Holdings is permitted under
paragraph (a) of this Section 8.4) and (ii) the Restricted
Subsidiaries which provide such guarantees provide guarantees
of the Notes on an equal and ratable basis."
SECTION 4 Representations and Warranties of the Issuers. Each Issuer
represents and warrants that as of the Effective Date and after giving effect to
the transactions contemplated by this Amendment:
(a) no Event Default has occurred and is continuing;
(b) no event which, but for the giving of notice or lapse of time or both,
would constitute an Event of Default (any such event being referred to as a
"Default") has occurred and is continuing;
(c) since March 31, 2002, there has been no change in the condition,
financial or otherwise, of the Issuers as shown on the consolidated balance
sheet as of such date except changes in the ordinary course of business, none of
which individually or in the aggregate has had, or reasonably could be expected
to have, a material adverse effect on the financial condition of the Company and
its Subsidiaries taken as a whole; and
(d) each representation and warranty of such Issuer set forth in the Note
Agreement is true and correct as though made on and as of such date.
SECTION 5 Effectiveness. This Amendment shall become effective as of the
Effective Date when the following conditions precedent shall have been
satisfied:
(a) receipt by the Noteholders of certificates dated the Effective Date,
signed on behalf of Holdings by an authorized officer of Holdings and on behalf
of the Company by an authorized officer of the Company, the truth and accuracy
of which shall be a condition precedent to the effectiveness of this Amendment
to the effect that (i) the representations and warranties of the Company and
Holdings set forth herein are true and correct on and as of the Effective Date
and (ii) no Default or Event of Default has occurred and is continuing; and
(b) receipt by the Noteholders of duly executed counterparts hereof signed
by Holdings and the Company.
SECTION 6 Effect of Amendment. Except as expressly set forth herein, the
amendment contained herein shall not constitute a waiver or amendment of any
term or condition of the Note Agreement, and all such terms and conditions shall
remain in full force and effect and are hereby ratified and confirmed in all
respects.
SECTION 7 Counterparts. This Amendment 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.
SECTION 8 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Treasurer
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XXXXXX INDUSTRIES INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice-President, CFO and
Secretary
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[SIGNATURE PAGES FOR NOTEHOLDERS FOLLOW]
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Authorized Signatory
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By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Authorized Signatory
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Principal amount of notes held: $4,822,729
MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Xxxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxxx
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Title: Vice President
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Principal amount of notes held: $2,724,709.27
$1,035,387.58
THRIVENT FINANCIAL FOR LUTHERANS
formely known as Aid Association for Lutherans)
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Portfolio Manager
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Principal amount of notes held: $2,179,768.48
AMERICAN FAMILY MUTUAL INSURANCE CO.
formely known as Aid Association for Lutherans)
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Investment Director
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Principal amount of notes held: $1,362,352.96
NATIONAL LIFE INSURANCE COMPANY
By: /s/ R. Xxxxx Xxxxxxx
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Name: R. Xxxxx Xxxxxxx
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Title: Vice President
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Principal amount of notes held: $1,925,000
THE FRANKLIN LIFE INSURANCE COMPANY,
THE AMERICAN FRANKLIN LIFE INSURANCE COMPANY
and
AMERICAN GENERAL LIFE INSURANCE COMPANY OF NEW
YORK
By: AIG Global Investment Corp., investment
adviser
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
Vice President
The Franklin Life Insurance Company
Principal amount of note held: $1,416,847.09
The American Franklin Life Insurance Company
Principal amount of note held: $81,741.27
American General Life Insurance Company of New
York
Principal amount of note held: $136,234.71
AMERICAN UNITED LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxxx X. Xxxxxx
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Title: Vice President
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Principal amount of notes held: $1,360,000.00
MODERN WOODMEN OF AMERICA
By: /s/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxx
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Title: Manager, Securities Division
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Principal amount of notes held: $544,941.90
WOODMEN ACCIDENT AND LIFE COMPANY
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Senior Securities Analayst and
Assistant Treasurer
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Principal amount of notes held: $817,408.00
JEFFERSON PILOT FINANCIAL INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx, XX
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Name: Xxxxxx X. Xxxxxx, XX
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Title: Vice President
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Principal amount of notes held: $681,176.30
PAN-AMERICAN LIFE INSURANCE CO.
By: /s/ Xxxx X. Xxxxxx, Xx.
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Name: Xxxx X. Xxxxxx, Xx.
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Title: Senior Vice President - Investments
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Principal amount of notes held: $544,941.32
(current balance)