FOURTH AMENDMENT TO THE RESTRUCTURING AGREEMENT
Exhibit 4.6
FOURTH AMENDMENT TO THE RESTRUCTURING AGREEMENT
THIS FOURTH AMENDMENT TO THE RESTRUCTURING AGREEMENT (this “Fourth Amendment”) is made and entered into as of September 30, 2002, between Xxxxx X. Xxxxxxxxx Holding Company, Inc., a Delaware corporation (“Holding”), and Xxxxx Investment Associates IV, L.P., a Delaware limited partnership (“KIA IV”).
WHEREAS, pursuant to that certain Restructuring Agreement, dated as of March 3, 1993 (the “Restructuring Agreement”) between Holding and KIA IV, KIA IV agreed to acquire from Holding, and Holding agreed to issue to KIA IV, $55,000,000 in aggregate principal amount of Series A Variable Rate Senior Notes (the “Series A Notes”) and certain warrants for the purchase of shares of common stock of Holding;
WHEREAS, pursuant to that certain Indenture, dated as of May 22, 2002 (the “Indenture”) between the Company and The Bank of New York, and as set forth in that certain Offering Circular of the Company, dated May 17, 2002 (the “Offering”), the Company issued $250,000,000 in aggregate principal amount of its 9¾% Senior Secured Notes due 2012 (the “Senior Secured Notes”);
WHEREAS, the net proceeds of the Offering were used, among other things, to pay a dividend to Holding in the amount of $25,000,000 to enable Holding to (x) pay principal and accrued interest on Holding’s indebtedness to KIA IV (the “Holding Notes”) and/or (y) to redeem or repurchase capital stock of Holding, subject to the terms of the Restructuring Agreement.
WHEREAS, as of June 30, 2002, Holding and KIA IV entered into a Third Amendment to the Restructuring Agreement extending the due date for any Excess Cash Flow payment in order to allow Holding to explore strategic alternatives for itself and to retain the $25,000,000 dividend and any earnings thereon until October 1, 2002.
1. Extension of Interest Payment Date.
1.1. Prepayment of Holding Notes. Holding and KIA IV covenant and agree to discuss the future application of the dividend received by Holding, including the possible application of all or a portion of such amount to the prepayment of a portion of the Holding Notes and/or the payment of accrued interest on the Holding Notes. Notwithstanding the foregoing, the application of such dividend will be in accordance with the terms of the Restructuring Agreement, as amended, unless KIA IV consents in writing to a different application.
1.2. Retention of Dividend and Extension of Interest Payment Date. Holding and KIA IV agree that Holding is entitled to retain the $25,000,000 dividend received by Holding in connection with the Offering until January 1, 2003 promptly after which all such amounts will be applied as Excess Cash Flow to the payment of interest unless otherwise agreed in writing by Holding and KIA IV. Holding and KIA IV acknowledge and agree that the retention by Holding of the $25,000,000 dividend and the taking of any other actions contemplated by this Fourth Amendment shall not constitute an Event of Default under Section 11.1 of the Restructuring Agreement, as amended.
2. Representations and Warranties of Holding. Holding represents and warrants to KIA IV as follows:
2.1. Organization, Standing, Etc. Holding is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
2.2. Qualification. Holding is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction (other than the jurisdiction of its incorporation) in which the nature of its activities or the character of the properties it owns or leases makes such qualification necessary.
2.3. Authorization. Holding has the corporate power and authority and the legal right to make, deliver and perform its obligations under this Fourth Amendment and has taken all necessary corporate action to authorize the transactions contemplated hereby and thereby. This Fourth Amendment has been duly authorized, executed and delivered by Holding. This Fourth Amendment constitutes the legal, valid and binding obligations of Holding, enforceable against Holding in accordance with its terms.
2.4. No Violation; Conflicts. The execution and delivery of this Fourth Amendment and the performance by Holding of its terms will not (a) violate any law or regulation or any order or decree of any court or governmental instrumentality applicable to Holding or any of its subsidiaries; (b) conflict with or constitute a material default under, or give rise to any right of termination or acceleration under, any material indenture, mortgage, deed of
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trust or loan agreement, or any other material agreement, lease or other instrument, to which Holding or any of its subsidiaries is a party or by which any of their property or assets are bound or to which they may be subject; or (c) violate any provision of the Certificate of Incorporation or By-Laws of Holding or any of its subsidiaries.
2.5. Governmental Consent. No consent, approval or authorization of, or declaration or filing with, any Governmental Authority on the part of Holding or any of its subsidiaries is required for the valid execution and delivery of this Fourth Amendment or the consummation of the transactions contemplated by this Fourth Amendment.
3. Covenants of Holding. Holding will not, directly or indirectly, declare, pay or make any disposition, in whole or in part, of the $25,000,000 without the prior written consent of KIA IV.
4. Parties. This Fourth Amendment shall inure to the benefit of and be binding upon the parties hereto, each subsequent holder of a Holding Note and each of their respective successors and assigns. Nothing expressed or mentioned in this Fourth Amendment is intended or shall be construed to give any Person, other than the parties hereto, each subsequent holder of a Holding Note and their respective successors and assigns, any legal or equitable right, remedy or claim under or in respect of this Fourth Amendment or any provisions herein contained. This Fourth Amendment and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto, any subsequent holder of a Holding Note and each of their respective successors and assigns, and for the benefit of no other Person.
5. Notices, Etc. Except as otherwise provided in this Fourth Amendment and the Restructuring Agreement, notices and other communications under this Fourth Amendment and the Restructuring Agreement shall be in writing and shall be delivered by hand, or mailed certified or registered mail with postage prepaid, or faxed, addressed, (a) if to Holding, c/o Xxxxx X. Xxxxxxxxx Company, 0000 Xxxx Xxxxx Xxxxxx, Xxxx, Xxxxxxxxxx 00000, fax number: (000) 000-0000 to the attention of Xx. Xxxxxxx Xxxxxxx, Vice President and Chief Financial Officer, or at such other address or to the attention of such other officer as Holding shall have furnished to KIA IV in writing with a copy to Xxxx X. Xxxxxx, Xxxxxx Xxxxxx Xxxxx Xxxxxxxx, 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, fax number: (310) 712–8225 or (b) if to KIA IV, c/o Kelso & Company, Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax number: (000) 000-0000 to the attention of Xx. Xxxxxxxx with a copy to Xxxxx Xxxxxxx, XX, Xxxxx & Company, Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax number: (000) 000-0000 or at such other address, or to the attention of such other officer, as KIA IV shall have furnished to Holding in writing or (c) if to any other holder of any Holding Note, at such address or such fax number as such other holder shall have furnished to Holding in writing, or, until any such other holder so furnishes to Holding an address or fax number, then to and at the address of the last holder of such Holding Note who has furnished an address to Holding. Any notice so addressed shall be deemed to be given three Business Days after being mailed by certified or registered mail or on the next Business Day after being faxed.
6. Further Assurances. At any time or from time to time upon the request of KIA IV, Holding shall execute and deliver, and shall cause its subsidiaries to execute and deliver,
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such further documents and do such other acts as KIA IV may reasonably request in order to effect fully the purpose of this Fourth Amendment.
7. Miscellaneous. This Fourth Amendment shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, whether so expressed or not, and, in particular, shall inure to the benefit of and be enforceable by any holder or holders at the time of the Holding Notes or any part thereof. This Fourth Amendment shall be construed and enforced in accordance with and governed by the law of the State of New York without regard to the conflicts of law rules of such state. The headings in this Fourth Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. Except as otherwise indicated, references to any “Section” mean a “Section” of this Fourth Amendment. This Fourth Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
8. Savings Clause. Except as amended herein, each provision of the Restructuring Agreement and the Stock Pledge Agreement and the Warrants shall continue valid, binding and in full force and effect.
9. Severability. If any provision of this Fourth Amendment shall be held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Fourth Amendment shall remain in full force and effect. Any provisions of this Fourth Amendment held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable.
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XXXXX X. XXXXXXXXX
HOLDING COMPANY, |
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By: |
/s/XXXXXXX X. XXXXXXX |
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Name: |
Xxxxxxx X. Xxxxxxx |
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Vice President, Chief
Financial Officer |
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XXXXX INVESTMENT
ASSOCIATES IV, L.P., a |
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By: |
Xxxxx Partners IV,
L.P., a Delaware limited |
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Its: |
General Partner |
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By: |
/s/XXXXX X. XXXXXXXXXX |
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Name: |
Xxxxx X. Xxxxxxxxxx |
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General Partner |
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