XXXX CORPORATION
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
---------------------------------------
Consent and Amendment to Note Agreement
---------------------------------------
November 14, 2001
To the undersigned Holders of the 7.86% Senior
Notes of Xxxx Corporation
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement dated as of August 1,
1996 among Xxxx Corporation, formerly known as Xxxx Manufacturing Co., (the
"Company"), Massachusetts Mutual Life Insurance Company, Allstate Life Insurance
Company, Allstate Insurance Company, Provident Mutual Life Insurance Company -
Covenant, Provident Mutual Life Insurance Company, Mennonite Mutual Aid
Association, and Mennonite Retirement Trust (the "Note Agreement") pursuant to
which the Company has issued $50,000,000 in aggregate principal amount of its
7.86% Senior Notes due August 1, 2011 (the "Notes"). Capitalized terms used
herein and not otherwise defined herein have the meanings set forth in the Note
Agreement.
RECITALS
A. The Note Agreement contains various provisions relating to the
disposition by the Company of its assets outside the ordinary course of
business. The Company has requested the holders of the Notes (the "Holders") to
confirm their consent, and the undersigned Holders, who together hold all of the
Notes, are willing to confirm their consent, to the sale of the Company's
graphics products business and related assets (the "Graphics Sale Transaction").
B. As an inducement to and in consideration of the aforesaid consent on
the part of the Holders, the Company has agreed to prepay a portion of the Notes
and the Company and the Holders have agreed to make certain modifications to the
provisions of the Note Agreement and the Notes, all as hereinafter set forth.
AGREEMENTS
Now, therefore, the Company and the Holders hereby agree as follows:
Section 1 Amendments to Notes and Note Agreement.
1.1 The regular interest rate applicable to the Notes is increased from
7.86% per annum to 8.36% per annum, and all references to "7.86%" in the Note
Agreement (including the Schedules and Exhibits thereto) are changed to "8.36%".
In consequence of such increase in the regular interest rate applicable to the
Notes, and consistent with the definition of "Default Rate", all references in
the Notes to "9.86%" shall be changed to "10.36%".
1.2 Section 8.1 of the Note Agreement is modified as follows:
(a) The existing text of such Section 8.1 is designated as
subsection "(a)", and such text is modified by inserting the
phrase "or purchase of the Notes required by Section 9.7"
immediately following the phrase "or purchase of the Notes
permitted by Section 8.5".
(b) A new subsection (b) is added to Section 8.1 to read as
follows:
(b) On or before November 14, 2001, the Company will
prepay $25,000,000 principal amount of the Notes at par and
without payment of the Make-Whole Amount but together with all
accrued and unpaid interest on the amount to be prepaid to the
date of prepayment. Until the Notes have been paid in full,
the prepayment required by this Section 8.1(b) shall not
reduce or otherwise affect the Company's obligation to make
any other payment required with respect to the Notes (except
that the provisions of Sections 10.2(d) and (e) shall not be
applicable to the Graphics Sale Transaction), including the
scheduled payments required by Section 8.1(a). Therefore,
following prepayment pursuant to this Section 8.1(b), the
final remaining scheduled payment of the Notes pursuant to
Section 8.1(a) will be on August 1, 2006, subject to the
other provisions of this Note Agreement.
1.3 A new Section 9.6 is added to the Note Agreement to read as
follows:
9.6 Maintenance of Credit Facility
The Company will at all times after December 31, 2001
maintain in effect a committed, unsecured revolving credit
facility in an amount at least equal to $25,000,000 with one
or more financial institutions.
-2-
1.4 A new Section 9.7 is added to the Note Agreement to read as
follows:
(a) Notice of Change in Control or Control Event. The
Company will, within thirty (30) Business Days after any
Responsible Officer has knowledge of the occurrence of any
Change in Control or Control Event, give written notice of
such Change in Control or Control Event to each Holder unless
notice in respect of such Change in Control (or the Change in
Control contemplated by such Control Event) shall have been
given pursuant to Section 9.7(b). If a Change in Control has
occurred, such notice shall contain and constitute an offer to
purchase the Notes as described Section 9.7(c) and shall be
accompanied by the certificate described Section 9.7(g).
(b) Condition to Company Action. The Company will not
take any action that consummates or finalizes a Change In
Control unless (i) at least thirty (30) days prior to such
action it shall have given to each Holder written notice
containing and constituting an offer to purchase the Notes as
described Section 9.7(c), accompanied by the certificate
described in Section 9.7(g), and (ii) contemporaneously with
such action, it shall have purchased all Notes required to be
purchased in accordance with this Section 9.7.
(c) Offer to Purchase Notes. Any offer to purchase the
Notes contemplated by this Section 9.7 shall be an offer to
purchase all, but not less than all, the Notes held by each
Holder on a date specified in such offer (the "Proposed
Purchase Date"). If such Proposed Purchase Date is in
connection with an offer contemplated by Section 9.7(a), such
date shall be not less than sixty (60) days and not more than
ninety (90) days after the date of such offer.
(d) Acceptance. A Holder may accept any offer to
purchase made pursuant to this Section 9.7 by causing a notice
of such acceptance to be delivered to the Company on or before
the twentieth (20th) day after the date of the offer. A
failure by a Holder to respond to an offer to purchase made
pursuant to this Section 9.7 within such twenty (20) day
period shall be deemed to constitute an acceptance of such
offer by such Holder.
(e) Purchase, Purchase of any Notes pursuant to this
Section 9.7 shall be at 100% of the principal amount of such
Notes plus all accrued and unpaid interest on such Notes to
the date of purchase but without payment of the Make-Whole
Amount. The purchase shall be made on the Proposed Purchase
Date except as provided in Section 9.7(f).
-3-
(f) Deferral Pending Change in Control. The obligation
of the Company to purchase Notes pursuant to any offer
required by Section 9.7(b) and accepted by a Holder is subject
to the occurrence of the Change in Control in respect of which
such offer shall have been made. In the event that such Change
in Control does not occur on the Proposed Purchase Date in
respect thereof, the purchase shall be deferred until and
shall be made on the date on which such Change in Control
occurs. The Company shall keep each Holder reasonably and
timely informed of (i) any such deferral of the date of
purchase, (ii) the date on which such Change in Control and
the purchase are expected to occur, and (iii) any
determination by the Company that efforts to effect such
Change in Control have ceased or been abandoned (in which case
the offers and acceptances made pursuant to this Section 9.7
in respect of such Change in Control shall automatically be
deemed rescinded without the need for any confirmation or
other writing).
(g) Officer's Certificate. Each offer to purchase the
Notes pursuant to this Section 9.7 shall be accompanied by a
certificate, executed by a Senior Financial Officer of the
Company and dated the date of such offer, specifying (i) the
Proposed Purchase Date; (ii) that such offer is made pursuant
to this Section 9.7; (iii) the principal amount of each Note
offered to be purchased; (iv) the interest that will have
accrued and be unpaid on each Note as of the Proposed Purchase
Date; (vi) that the conditions of this Section 9.7 have been
fulfilled; and (vii) in reasonable detail, the nature and date
or proposed date of the Change in Control.
(h) "Change in Control" Defined. Change in Control
means any of the following events or circumstances:
(i) individuals who, at the beginning of any period of
24 consecutive months, constitute the Company's board of
directors (together with any new director whose election by
the Company's board of directors or whose nomination for
election by the Company's stockholders was approved by a vote
of at least two-thirds of the directors then still in office
who either were directors at the beginning of such period or
whose election or nomination for election was previously so
approved) cease for any reason (other than death or
disability) to constitute a majority of the Company's board of
directors then in office; or
(ii) any Person or Persons acting as a group (as such
term is used in Rule l3d-5 under the Exchange Act as in effect
on the date hereof) shall in the aggregate, directly or
indirectly, control or own (beneficially or otherwise) more
than fifty percent (50%) (by number of shares) of the issued
and
-4-
outstanding voting stock of the Company; provided, however,
that a "Change in Control" shall not occur if (A) such group
includes (x) members of the Xxxxxx family, (y) directors and
officers of the Company and its Affiliates as of November 1,
2001 and (z) other directors and officers of the Company or
any Affiliates of the Company as of November, 2001 whose
election is approved by a vote of at least two-thirds of the
directors of the relevant entity then in office who were
either themselves in office on November 1, 2001 or
subsequently approved as provided in this clause (z), (B) the
Persons described in the preceding clause (A) together own at
least 20% (by number of shares) of the issued and outstanding
voting stock of the Company and (C) no member of the Xxxxxx
family has entered into an agreement with any Person not a
member of the Xxxxxx family that restricts in any manner how
such member of the Xxxxxx family may vote his shares of stock
in the Company
(i) "Control Event" Defined. Control Event means:
(i) the execution by the Company or any of its
Affiliates of any agreement or letter of intent with respect
to any proposed transaction or event or series of transactions
or events which, if consummated, individually or in the
aggregate, may reasonably be expected to result in a Change in
Control; or
(ii) the making of any written offer by 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 hereof or related
persons constituting a group (as such term is used in Rule
13d-5 under the Exchange Act as in effect on the date hereof)
to the holders of the common stock of the Company, which
offer, if accepted by the requisite number of holders, would
result in a Change in Control.
1.5 Section 10.4 of the Note Agreement is modified as follows:
(a) The existing text of such Section 10.4 is designated as
subsection "(a)" and such text is modified by inserting the
phrase "prior to the closing of the Graphics Sale Transaction"
immediately following the phrase "at any time" in the first
fine thereof.
(b) A new subsection (b) is added to such Section 10.4 to read as
follows:
(b) The Company will not, at any time following the
closing of the Graphics Sale Transaction, permit Adjusted
Consolidated Net Worth to be less than the sum of (i) 85% of
Post Transaction Consolidated Net Worth, plus (ii) an
aggregate amount equal to 50% of Adjusted Consolidated Net
Income (but only if a
-5-
positive number) for each completed fiscal quarter
subsequent to December 2, 2001; provided that, once Adjusted
Consolidated Net Worth is equal to at least $60,000,000 as of
the end of any fiscal quarter, then effective for that and all
subsequent fiscal quarters, the percentage set forth in the
preceding clause (ii) shall decrease from 50% to 30%.
1.6 Section 10.5(c)(i) of the Note Agreement is amended to read in its
entirety as follows:
(i) The Company will not at any time permit the ratio of
Consolidated Funded Debt to Consolidated Operating Cash Flow
for the most recently ended fiscal year of the Company to
exceed the following for the periods indicated:
For Fiscal Year Ratio
--------------- -----
1996 3.25
1997 3.00
1998 2.75
1999 and 2000 2.50
2001 3.00
2002 2.75
2003 and thereafter 2.50
1.7 Section 10.5(c)(ii) of the Note Agreement is modified to read in
its entirety as follows:
(ii) The Company will not at any time permit the ratio
of Consolidated Net Funded Debt to Consolidated Total
Capitalization for the most recently ended fiscal quarter of
the Company to exceed 50%.
1.8 Section 10.7 of the Note Agreement is amended by adding the
following sentence immediately after the existing text of such Section:
The Company will not redeem or acquire any shares of its
capital stock or any warrants, rights or other options to
purchase such stock (except when solely in exchange for such
stock) unless immediately after giving effect to such action
Adjusted Consolidated Net Worth would be at least $60,000,000.
1.9 Schedule B to the Note Agreement is amended by inserting the
following new definitions in the appropriate alphabetical positions:
"Adjusted Consolidated Net Income" means, for any period, (a)
Consolidated Net Income for such period plus (b) all expenses
of Cost Base Reduction Activities deducted in the
determination of such Consolidated Net Income,
-6-
provided that the aggregate amount of such expenses of Cost Base
Reduction Activities counted in determining Adjusted Consolidated
Net Income for all periods subsequent to the Graphics Sale
Transaction shall be limited to $3,000,000.
"Adjusted Consolidated Net Worth" means, at any time, (a)
Consolidated Net Worth plus (b) all expenses of Cost Base
Reduction Activities subsequent to the Graphics Sale Transaction
up to an aggregate amount of $3,000,000.
"Consolidated Net Debt" means, at any time, Consolidated Debt less
the amount at which cash and cash equivalents would be shown on a
consolidated balance sheet of the Company and its Restricted
Subsidiaries at such time in accordance with GAAP.
"Consolidated Net Funded Debt" means, at any time, Consolidated
Funded Debt less the amount at which cash and cash equivalents
would be shown on a consolidated balance sheet of the Company and
its Restricted Subsidiaries at such time in accordance with GAAP.
"Cost Base Reduction Activities" are those actions the Company
will embark upon subsequent to the Graphics Sale Transaction to
reduce various ongoing expenses to align the Company's cost
structure to its remaining businesses.
"Graphics Sale Transaction" means the sale by the Company as of
October 9, 2001 in a single transaction of the Company's Graphics
Products business and related assets.
"Post Transaction Consolidated Net Worth" means an amount equal to
the sum of: (a) Consolidated Net Worth as of December 2, 2001,
plus (b) without duplication, any expenses of Cost Base Reduction
Activities reflected in the determination of such Consolidated Net
Worth.
1.10 Schedule B to the Note Agreement is further amended by changing
the definition of "Consolidated Total Capitalization" to read as follows:
"Consolidated Total Capitalization" means, at any time, the sum of
Adjusted Consolidated Net Worth and Consolidated Net Debt.
Section 2 Confirmation of Subsidiary Guaranty.
By their signatures below, each of Xxxx Holdings, Inc. and Xxxx X-Acto,
Inc. (the "Remaining Subsidiary Guarantors") confirms the continuing validity
and effectiveness of the Subsidiary Guaranty as to it, and agrees that such
Subsidiary Guaranty shall continue to secure the Notes, as the terms thereof are
modified by this Consent and Amendment.
-7-
Section 3 Consent to Graphics Sale Transaction.
By their execution of this Consent and Amendment, each of the
undersigned Holders expressly confirms its consent to the Graphics Sale
Transaction.
Section 4 Representations and Warranties of the Company and Subsidiary
Guarantors.
To induce the Holders to execute and deliver this Consent and
Amendment, the Company (and each Remaining Subsidiary Guarantor as to itself)
represents and warrants as follows:
4.1 This Consent and Amendment has been duty authorized, executed, and
delivered by the Company and each Remaining Subsidiary Guarantor and constitutes
the legal, valid and binding obligation of the Company and each Remaining
Subsidiary Guarantor enforceable against it in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws or equitable principles relating to or limiting
creditors' rights generally.
4.2 The execution, delivery, and performance by the Company and each
Remaining Subsidiary Guarantor of this Consent and Amendment (a) has been duly
authorized by all requisite corporate action, (b) does not require the consent
or approval of any governmental or regulatory body or agency, and (c) will not
(i) violate any provision of any law, statute, rule or regulation applicable to
the Company or any Remaining Subsidiary Guarantor, or their respective
certificates of incorporation or bylaws or any order of any court or other
governmental agency or authority binding upon any thereof or (ii) conflict with
or result in a breach of any of the terms, conditions, or provisions of, or
constitute a default under, any agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which it or any of its Subsidiaries is
bound.
4.3 As of the date hereof and after giving effect to this Consent and
Amendment, no Default or Event of Default has occurred that is continuing and no
condition exists which, with the lapse of time or giving of notice or both, will
become a Default or Event of Default.
4.4 Neither the Company nor any Subsidiary has paid or offered to pay,
and neither the Company nor any Subsidiary will pay or offer to pay, any fee to
any Holder with respect to, or as an inducement to enter into, this Consent and
Amendment unless the same fee (in pro rata amounts and on identical terms) is
paid to all Holders.
4.5 Each of Xxxxx Custom Furniture, Inc. Xxxx Data Products, Inc. and
Seat Products Incorporated has been sold by the Company.
Section 5 Conditions to Effectiveness.
5.1 The amendments and modifications to the Notes and the Note
Agreement set forth in Section 1 of this Consent and Amendment shall not become
effective until each and every one of the following conditions has been
satisfied:
-8-
(a) executed counterparts of this Consent and Amendment, duly
executed by the Company, each Remaining Subsidiary Guarantor and
the holders of 100% of the outstanding principal amount of the
Notes, shall have been delivered to the Holders or to their
special counsel on their behalf;
(b) the Company shall have delivered to each Holder, in exchange for
each Note held by such Holder, a new Note, substantially in the
form of Exhibit 1 to the Note Agreement but reflecting the
changes in the regular interest rate and Default Rate applicable
to the Notes set forth in Section 1.1 hereof;
(c) the Holders shall have received a copy of the resolutions of the
Board of Directors of the Company and each Remaining Subsidiary
Guarantor duly authorizing the execution, delivery and
performance by the Company and such Remaining Subsidiary
Guarantor of this Consent and Amendment, certified by its
Secretary or an Assistant Secretary;
(d) the Company shall have delivered to each Holder a copy of a term
sheet or term sheets from financial institutions providing for
the revolving credit facility referred to in Section 1.3 above;
(e) the Company shall have paid the reasonable fees and expenses of
Day, Xxxxx & Xxxxxx LLP, special counsel to the Holders, in
connection with the negotiation, preparation and delivery of this
Consent and Amendment; and
(f) the Company shall have paid to each Holder the prepayment
contemplated by Section 8.1(b) of the Note Agreement, as set
forth in Section 1.2 hereof, and an amendment fee equal to 0.10%
of the aggregate outstanding principal amount of the Notes held
by such Holder (as such principal amount shall have been reduced
by such prepayment).
5.2 The Consent set forth in Section 3 of this Consent and Amendment
shall not be effective until each of the conditions set forth in Section 5.1
hereof has been satisfied and, in addition, the Company shall have made (or
shall make concurrently with such effectiveness) the prepayment of the Notes
contemplated by Section 8.1(b) of the Note Agreement, as set forth in Section
1.2 hereof.
Section 6 Miscellaneous.
6.1 This Consent and Amendment shall be construed in connection with
and as part of the Note Agreement, and except as modified and expressly amended
by this Consent and Amendment, all terms, conditions and covenants contained in
the Note Agreement, as heretofore amended, and the Notes are hereby ratified and
shall be and remain in full force and effect.
6.2 Any and all notices, requests, certificates, and other instruments
executed and delivered after the execution and delivery of this Consent and
Amendment may refer to the Note Agreement without making specific reference to
this Consent and Amendment but nevertheless
-9-
all such references shall include this Consent and Amendment unless the context
otherwise requires.
6.3 The descriptive headings of the various Sections or parts of this
Consent and Amendment are for convenience only and shall not affect the meaning
or construction of any of the provisions hereof.
6.4 This Consent and Amendment shall be governed by and construed in
accordance with Massachusetts law.
6.5 This Consent and Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original, but all
together only one agreement.
IN WITNESS WHEREOF, the undersigned have executed this Consent and
Amendment as of the date first written above.
Company
-------
XXXX CORPORATION
By:
-----------------------------------
Name:
Title:
Remaining Subsidary Guarantors
------------------------------
XXXX HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
XXXX X-ACTO, INC.
By:
-----------------------------------
Name:
Title:
-10
Holder MASSACHUSETTS MUTUAL LIFE
------ INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
(This is one of 4 separate signature pages signed by the Holders of the Notes.
The remainder of this page is intentionally left blank.)
Holders ALLSTATE LIFE INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
ALLSTATE INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
(This is one of 4 separate signature pages signed by the Holders of the Notes.
The remainder of this page is intentionally left blank.)
-12-
Holders PROVIDENT MUTUAL LIFE INSURANCE
------- COMPANY-COVENANT
By:
-----------------------------------
Name:
Title:
PROVIDENT MUTUAL LIFE INSURANCE
COMPANY
By:
-----------------------------------
Name:
Title:
(This is one of 4 separate signature pages signed by the Holders of the Notes.
The remainder of this page is intentionally left blank.)
-13-
Holders MENNONITE MUTUAL AID ASSOCIATION
-------
By:
-----------------------------------
Name:
Title:
MENNONITE RETIREMENT TRUST
By:
-----------------------------------
Name:
Title:
(This is one of 4 separate signature pages signed by the Holders of the Notes.
The remainder of this page is intentionally left blank.)
-14-
