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XXXX-XXXXX COMPANY
THIRD AMENDMENT AGREEMENT
Dated as of January 15, 1997
Re: Note Agreements Dated as of September 15, 1987
and
$10,000,000 original principal amount of 9.9%
Senior Notes Due September 30, 2002
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
SECTION 1. AMENDMENTS TO EXISTING NOTE AGREEMENTS 2
Section 1.1. General Reference Amendment 2
Section 1.2. Amendments to Section 1.1 2
Section 1.3. Amendments to Section 2 2
Section 1.4. Amendments to Section 5.1 5
Section 1.5. Amendment to Section 6.7 6
Section 1.6. Amendment to Section 6.8 6
SECTION 2. AMENDMENT OF EXISTING NOTES 7
Section 2.1. Amendment of Existing Notes. 7
Section 3. Exchange of Notes 7
Section 3.1. Issuance of Notes 7
Section 3.2. Form and Registration 8
Section 3.3. Delivery of Notes 8
Section 3.4. Exchange Not Deemed Prepayment 8
Section 4. Conditions Precedent and Additional Agreements 8
Section 4.1. Conditions Precedent 8
Section 5. Representations 9
Section 5.1. Representations of the Company 9
Section 6. Miscellaneous 9
Section 6.1. Capitalized Terms 9
Section 6.2. Existing Note Agreements 10
Section 6.3. References 10
Section 6.4. Successors and Assigns 10
Section 6.5. Governing Law 10
Section 6.6. Expenses 10
Section 6.7. Counterparts 11
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Signature 11
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XXXX-XXXXX COMPANY
THIRD AMENDMENT AGREEMENT
Re:
Note Agreements Dated as of September 15, 1987
and
$10,000,000 original principal amount of 9.9%
Senior Notes Due September 30, 2002
Dated as of
January 15, 1997
(the "EFFECTIVE DATE")
To Each of the Holders
of Notes listed in Schedule I
to the Note Agreements described below
Gentlemen:
Reference is made to (i) the separate Note Agreements each dated as of
September 15, 1987 between XXXX-XXXXX COMPANY, a Delaware corporation (the
"COMPANY"), and each of you, respectively (the "NOTEHOLDERS"), as amended by
that certain First Amendment dated as of November 15, 1996 and that certain
Second Amendment dated as of November 15, 1996 (as so amended, the "EXISTING
NOTE AGREEMENTS"), and (ii) the $10,000,000 original principal amount of 9.9%
Senior Notes due September 30, 2002 issued pursuant to the Existing Note
Agreements (the "EXISTING NOTES"). The Existing Note Agreements, as amended
hereby, shall be referred to as the "NOTE AGREEMENTS," and the Existing
Notes, as amended hereby, shall be referred to as the "NOTES."
For good and valuable consideration, the Company requests the amendment
of certain provisions of the Existing Note Agreements and the Existing Notes
as hereinafter provided.
Upon your acceptance hereof and the satisfaction of all conditions
precedent hereto, this Third Amendment Agreement shall constitute a contract
between us amending the Existing Note Agreements and the Existing Notes, but
only in the respects hereinafter set forth:
SECTION 1. AMENDMENTS TO EXISTING NOTE AGREEMENTS.
SECTION 1.1. GENERAL REFERENCE AMENDMENT. From and after January 15,
1997, each reference in the Existing Note Agreements and the Existing Notes
to the "$10,000,000 9.9% Senior Notes Due September 30, 2002", is hereby
amended to refer to the "$10,000,000 First Amended and Restated 10.9% Senior
Notes Due September 30, 2004";
SECTION 1.2. AMENDMENTS TO SECTION 1.1. (a) From and after January
15, 1997, Section 1.1 of the Existing Note Agreements is hereby amended to
change the references in such section from "9.9%" and "10.9" to "10.9%" and
"11.9%", respectively and to change the references in such section from
"September 30, 2002" to "September 30, 2004" .
(b) Section 1.1 of the Existing Note Agreements is hereby amended by
inserting the following paragraph at the end thereof:
Notwithstanding anything contained herein to the contrary, in
addition to the stated interest rate applicable to the Notes
(including, without limitation, the interest rate applicable to
overdue payments in respect of the Notes), the Notes shall bear
additional interest at the rate of .50% per annum during any
Interest Rate Event Period.
SECTION 1.3. AMENDMENTS TO SECTION 2. (a) Section 2.1 of the
Existing Note Agreements is hereby amended to read in its entirety as follows:
SECTION 2.1. REQUIRED PRINCIPAL PREPAYMENTS. The Company
agrees that it will prepay and apply, and there shall become due
and payable an amount equal to $750,000 on October 1 in each year
beginning September 30, 1997 up to and including September 30, 2003
in respect of the aggregate principal indebtedness evidenced by the
Notes. The remaining unpaid principal amount of the Notes and
accrued and unpaid interest thereon shall be due and payable on
September 30, 2004.
No premium shall be payable in connection with any required
prepayment made pursuant to this SECTION 2.1. Upon any
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repurchase of less than all of the outstanding Notes pursuant to
SECTION 2.6, SECTION 2.7 or SECTION 6.13, the principal amount of
each required principal prepayment of the Notes becoming due under
this SECTION 2.1 on and after the date of such prepayment or
purchase shall be reduced in the same proportion as the aggregate
unpaid principal amount of the Notes is reduced as a result of such
repurchase. For purposes of this SECTION 2.1, any prepayment of
less than all of the outstanding Notes pursuant to SECTION 2.2
shall be deemed to be applied first to the amount of principal
scheduled to remain unpaid on September 30, 2004, and then to the
remaining scheduled principal payments in inverse chronological
order.
(b) Section 2 of the Existing Note Agreements is hereby amended to
insert the following new Section 2.7 at the end thereof:
SECTION 2.7. CHANGE IN CONTROL. (a) NOTICE OF CHANGE IN
CONTROL OR CONTROL EVENT. The Company will, within 3 days after
any Change in Control or Control Event, give written notice of such
Change in Control or Control Event to each holder of Notes 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 subparagraph (b) of this SECTION 2.7. If a Change in
Control has occurred, such notice shall contain and constitute an
offer to prepay Notes as described in subparagraph (c) of this
SECTION 2.7 and shall be accompanied by the certificate described
in subparagraph (g) of this SECTION 2.7.
(b) CONDITION TO COMPANY ACTION. The Company will not take
any action that consummates or finalizes a Change in Control unless
(i) at least 45 days prior to such action it shall have given to
each holder of Notes written notice containing and constituting an
offer to prepay Notes as described in subparagraph (c) of this
SECTION 2.7, accompanied by the certificate described in
subparagraph (g) of this SECTION 2.7, and (ii) contemporaneously
with such action, it prepays all Notes required to be prepaid in
accordance with this SECTION 2.7.
(c) OFFER TO PREPAY NOTES. The offer to prepay Notes
contemplated by subparagraphs (a) and (b) of this SECTION 2.7 shall
be an offer to prepay, in accordance with and subject to this
SECTION 2.7, all, but
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not less than all, of the Notes held by each holder (in this case
only, "HOLDER" in respect of any Note registered in the name of a
nominee for a disclosed beneficial owner shall mean such beneficial
owner) on a date specified in such offer (the "PROPOSED PREPAYMENT
DATE"). If such Proposed Prepayment Date is in connection with an
offer contemplated by subparagraph (a) of this SECTION 2.7, such
date shall be not less than 30 days and not more than 45 days after
the date of such offer (if the Proposed Prepayment Date shall not
be specified in such offer, the Proposed Prepayment Date shall be
the 45th day after the date of such offer).
(d) ACCEPTANCE. A holder of Notes may accept the offer to
prepay made pursuant to this SECTION 2.7 by causing a notice of
such acceptance to be delivered to the Company at least 5 days
prior to the Proposed Prepayment Date. A failure by a holder of
Notes to respond to an offer to prepay made pursuant to this
SECTION 2.7 shall be deemed to constitute an acceptance of such
offer by such holder.
(e) PREPAYMENT. Prepayment of the Notes to be prepaid
pursuant to this SECTION 2.7 shall be at 100% of the principal
amount of such Notes, plus the Make Whole Premium determined for
the date of prepayment with respect to such principal amount,
together with interest on such Notes accrued to the date of
prepayment. On the business day preceding the date of prepayment,
the Company shall deliver to each holder of Notes being prepaid a
statement showing the Make Whole Premium due in connection with
such prepayment and setting forth the details of the computation of
such amount. The prepayment shall be made on the Proposed
Prepayment Date except as provided in subparagraph (f) of this
SECTION 2.7.
(f) DEFERRAL PENDING CHANGE IN CONTROL. The obligation of
the Company to prepay Notes pursuant to the offers required by
subparagraph (b) and accepted in accordance with subparagraph (d)
of this SECTION 2.7 is subject to the occurrence of the Change in
Control in respect of which such offers and acceptances shall have
been made. In the event that such Change in Control does not occur
on the Proposed Prepayment Date in respect thereof, the prepayment
shall be deferred until and shall be made on the date on which such
Change in Control occurs. The Company shall keep each holder of
Notes reasonably and timely
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informed of (i) any such deferral of the date of prepayment, (ii)
the date on which such Change in Control and the prepayment 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 2.7 in respect of such Change in Control shall be
deemed rescinded).
(g) OFFICER'S CERTIFICATE. Each offer to prepay the Notes
pursuant to this SECTION 2.7 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 Prepayment Date;
(ii) that such offer is made pursuant to this SECTION 2.7; (iii)
the principal amount of each Note offered to be prepaid; (iv) the
estimated Make Whole Premium due in connection with such prepayment
(calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation; (v) the
interest that would be due on each Note offered to be prepaid,
accrued to the Proposed Prepayment Date; (vi) that the conditions
of this SECTION 2.7 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:
if any person (as such term is used in section 13(d) and
section 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT") or related persons constituting a
group (as such term is used in Rule 13d-5 under the Exchange
Act), become the "beneficial owners" (as such term is used in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
more than 35% of the total voting power of all classes then
outstanding of the Company's voting stock.
(i) "CONTROL EVENT" DEFINED. "CONTROL EVENT" means:
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(i) the execution by the Company or any of its
Subsidiaries or Affiliates of any agreement or letter of
intent with respect to any proposed transaction or event or
series of transactions or events which, individually or in the
aggregate, may reasonably be expected to result in a Change in
Control,
(ii) the execution of any written agreement which, when
fully performed by the parties thereto, would result in a
Change in Control, or
(iii) 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) or related persons constituting a group (as
such term is used in Rule 13d-5 under the Exchange Act) 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.
SECTION 1.4. AMENDMENTS TO SECTION 5.1. Section 5.1 of the
Existing Note Agreements is hereby amended as follows: (a) by inserting the
following definitions in alphabetical order:
"DEBT" with respect to any Person shall mean, without
duplication, the sum of:
(a) the obligations of such Person for borrowed money or
which have been incurred in connection with the acquisition of
assets;
(b) liabilities secured by any Lien existing on Property
owned by such Person (whether or not such liabilities have been
assumed);
(c) Capitalized Rentals under any Capitalized Lease; and
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(d) all Guarantees of Debt of others, whether or not
reflected in the balance sheet of such Person.
"INTEREST RATE EVENT PERIOD" shall mean any period during
which the Company fails to have outstanding unsecured long-term
Indebtedness which has a then current rating of BBB- or higher by
Standard & Poor's Corporation.
(b) by amending the definition of "Make Whole Premium" so that the
reference to "the original yield to maturity of the Notes" contained therein
shall read "10.9%" as and after the effective date hereof.
SECTION 1.5. AMENDMENT TO SECTION 6.7. Section 6.7 of the Existing
Note Agreements is hereby amended to read in its entirety as follows:
SECTION 6.7. STOCKHOLDERS' EQUITY. The Company will not, at any
time, permit Stockholders' Equity to be less than the sum of (a)
$170,000,000, plus (b) an aggregate amount equal to 25% of its
Consolidated Net Income (but, in each case, only if a positive number)
for each completed fiscal year beginning with the fiscal year ended
January 3, 1998.
SECTION 1.6. AMENDMENT TO SECTION 6.8. Section 6.8(a) of the Existing
Note Agreements is hereby amended to read in its entirety as follows:
SECTION 6.8. INCURRENCE OF DEBT. (a) Neither the Company nor any
Subsidiary will create, issue, assume, guarantee or otherwise incur or
become liable in respect of any Debt, except:
(i) the Notes;
(ii) Debt of the Company and its Subsidiaries outstanding as
of the date of this Agreement and reflected on the consolidated
balance sheet of the Company and its Subsidiaries as of June 20,
1987;
(iii) additional unsecured Debt of the Company; PROVIDED
that at the time of issuance thereof and after giving effect
thereto and to the application of the proceeds thereof Debt of the
Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP shall not, during any fiscal year set forth
below, exceed the percent of Total Capitalization set forth
opposite such period:
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PERCENTAGE OF DEBT TO
FISCAL YEAR TOTAL CAPITALIZATION
1996 70%
1997 70%
1998 67.5%
1999 65%
2000 and thereafter 60%
(iv) additional Debt of the Company and its Subsidiaries
secured by Liens permitted by and incurred within the limitations
of SECTION 6.9(a)(8) or SECTION 6.9(a)(9); PROVIDED that at the
time of issuance thereof and after giving effect thereto and to the
application of the proceeds thereof Debt of the Company and its
Subsidiaries determined on a consolidated basis in accordance with
GAAP shall not, during any fiscal year set forth below, exceed the
percent of Total Capitalization set forth opposite such period:
PERCENTAGE OF
DEBT TO TOTAL
FISCAL YEAR CAPITALIZATION
1996 70%
1997 70%
1998 67.5%
1999 65%
2000 and thereafter 60%
(v) Debt of a Subsidiary to the Company or to a Wholly-Owned
Subsidiary.
SECTION 2. AMENDMENT OF EXISTING NOTES.
SECTION 2.1. AMENDMENT OF EXISTING NOTES. The Existing Notes shall be
and are hereby amended to be in the form of Exhibit A hereto.
SECTION 3. EXCHANGE OF NOTES.
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SECTION 3.1. ISSUANCE OF NOTES. The Company agrees to issue and deliver
on the Effective Date of this Third Amendment Agreement the new Notes in the
form of Exhibit A hereto to the Noteholders in exchange for their outstanding
Existing Notes. The Noteholders agree to surrender their Existing Notes to the
Company in exchange for the new Notes, and the Existing Notes shall be canceled
by the Company and shall be void. The Company shall pay any stamp tax or
governmental charge imposed upon such exchange (including, without limitation,
any income or similar tax that is imposed upon the gain, if any, that is
realized by such Noteholder in connection with the exchange). Notwithstanding
anything contained herein to the contrary, the Notes shall bear interest at the
rate of 9.9% per annum for the period from September 30, 1996 to and including
January 14, 1997.
SECTION 3.2. FORM AND REGISTRATION. Each Note shall be in the form of a
single registered Note, shall be registered in the name of the Noteholder
surrendering such Existing Note as reflected on the books and records of the
Company, shall be issued for the same principal amount (after giving effect to
all prepayments of Notes prior to January 15, 1997) as the outstanding principal
amount of the Existing Note surrendered in exchange therefor, and shall be dated
September 30, 1996.
SECTION 3.3. DELIVERY OF NOTES . The Company shall deliver the Notes in
proper form at the offices of Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, to be held by such firm for delivery against surrender
by the Noteholders in exchange therefor of the Existing Notes.
SECTION 3.4. EXCHANGE NOT DEEMED PREPAYMENT. Each of the Noteholders and
the Company agrees that the amendments affected pursuant to this Third Amendment
Agreement and the exchange of Notes for Existing Notes pursuant to this Third
Amendment Agreement shall not be deemed a prepayment, redemption or repurchase
of the Existing Notes for any purpose, including Section 2 or Section 6.13 of
the Note Agreements.
SECTION 4. CONDITIONS PRECEDENT AND ADDITIONAL AGREEMENTS.
SECTION 4.1. CONDITIONS PRECEDENT. Each Noteholder's agreements set
forth in Section 1 of this Third Amendment Agreement are effective subject to
the satisfaction of the following conditions precedent:
(a) Each Noteholder shall have received this Third Amendment
Agreement, duly executed by the Company.
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(b) The holders of 100% of the outstanding principal amount of the
Notes shall have consented to this Third Amendment Agreement as
evidenced by their execution hereof.
(c) The Company shall have provided to the holders of the Notes an
opinion of Xxx X. Xxxxxxx, Esq., counsel to the Company, substantially
in the form Exhibit B hereto and otherwise in form and substance
satisfactory to the holders of the Notes.
(d) The fees and disbursements of special counsel to the holders
of the Notes incurred through the Closing Date shall have been satisfied
by the Company.
SECTION 5. REPRESENTATIONS.
SECTION 5.1. REPRESENTATIONS OF THE COMPANY. The Company hereby
represents and warrants that as of the date of execution and delivery of this
Third Amendment Agreement and as of the Effective Date:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation.
(b) The Company has the requisite power to own its property and to
carry on its business as now being conducted.
(c) The Company is duly qualified and in good standing as a
foreign corporation, authorized to do business in each jurisdiction in
which the failure to do so would, individually or in the aggregate, have
a material adverse effect on the business, condition (financial or
other), assets, operations, properties or prospects of the Company.
(d) This Third Amendment Agreement and the Note Agreements and
Notes (as amended hereby) are within the corporate powers of the Company
and have been duly authorized by all necessary corporate action on the
part of the Company and constitute (or, in the case of this Third
Amendment Agreement, when executed and delivered by holders of 100% of
the outstanding principal amount of the Notes will constitute) legal,
valid and binding obligations of the Company enforceable in accordance
with their respective terms.
(e) The execution, delivery and performance of this Third
Amendment Agreement by the Company does not and will not result in a
violation of or default under (A) the certificate of incorporation or
bylaws of the Company, (B) any agreement to which the Company is a party
or by which it is bound or to which the Company or any of
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its properties is subject, (C) any order, writ, injunction or decree
binding on the Company, or (D) any statute, regulation, rule or other
law applicable to the Company.
(f) No material authorization, consent, approval, exemption or
action by or notice to or filing with any court or administrative or
governmental body is required in connection with the execution and
delivery of this Third Amendment Agreement or the consummation of the
transactions contemplated hereby.
SECTION 6. MISCELLANEOUS.
SECTION 6.1. CAPITALIZED TERMS. The capitalized terms used in this Third
Amendment Agreement shall have the respective meanings specified in the Existing
Note Agreements unless otherwise herein defined or the context hereof shall
otherwise require.
SECTION 6.2. EXISTING NOTE AGREEMENTS. Except as amended herein, all
terms and provisions of the Existing Note Agreements are hereby ratified,
confirmed and approved in all respects.
SECTION 6.3. REFERENCES. Any and all notices, requests, certificates and
other instruments, including the Notes, may refer to the "Note Agreements," or
the "Note Agreements each dated as of September 15, 1987" without making
specific reference to this Third Amendment Agreement, but nevertheless all such
references shall be deemed to include this Third Amendment Agreement unless the
context shall otherwise require.
SECTION 6.4. SUCCESSORS AND ASSIGNS. This Third Amendment Agreement and
all covenants herein contained shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereunder. All covenants
made by the Company and the Noteholders herein shall survive the closing and the
delivery of this Third Amendment Agreement.
SECTION 6.5. GOVERNING LAW. This Third Amendment Agreement shall be
governed by and construed in accordance with Minnesota law.
SECTION 6.6. EXPENSES. The Company will pay and/or reimburse all
reasonable expenses of the Noteholders in connection with the negotiation,
preparation, execution and delivery of this Amendment and the transactions
contemplated hereby, in accordance with SECTION 9.4 of the Note Agreements.
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SECTION 6.7. COUNTERPARTS. This Third Amendment Agreement may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together only one instrument.
XXXX-XXXXX COMPANY
By:
Its
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This foregoing Third Amendment Agreement is hereby accepted and agreed
to as of the Effective Date and the undersigned hereby confirms that on
January 15, 1997 and as of the date of execution and delivery hereof
immediately prior to the exchange of Notes provided for herein it held Notes
of the Company as indicated on Schedule I hereto.
IDS LIFE INSURANCE COMPANY
By:
Its
IDS LIFE INSURANCE COMPANY OF NEW
YORK
By:
Its
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XXXX-XXXXX COMPANY
First Amended and Restated 10.9% Senior Note Due September 30, 2004
PPN: _________________
No. R- September 30, 1996
$
XXXX-XXXXX COMPANY, a Delaware corporation (the "COMPANY"), for value
received, hereby promises to pay to
or registered assigns the principal amount of
DOLLARS
($ ) on September 30, 2004 together with interest on the principal
amount from time to time remaining unpaid hereon at the rate of 9.9% per
annum from and after the date hereof through and including January 14, 1997
and at the rate of 10.9% per annum from January 15, 1997 until maturity
(computed on the basis of a 360-day year of 12 consecutive 30-day months) in
installments payable on March 31, 1997 and on the last day of each March and
September thereafter to and including the date of maturity hereof. The
Company further promises to pay interest on each overdue installment of
principal, premium, if any, and (to the extent legally enforceable) upon each
overdue installment of interest at the rate of 11.9% per annum in each case
from and after the maturity of each such installment, whether by acceleration
or otherwise, until paid. Subject only to SECTION 2.5 of the Note Agreements
hereinafter referred to, both the principal hereof, premium, if any, and
interest at the rate of 10.9% per annum hereon are payable at the principal
office of the Company in Minneapolis, Minnesota, in coin or currency of the
United States of America which at the time of payment shall be legal tender
for the payment of public and private debts.
This Note is one of the First Amended and Restated 10.9% Senior Notes due
September 30, 2004 of the Company in the aggregate principal amount of
$10,000,000 issued or to be issued under and pursuant to the terms and
provisions of separate and several Note Agreements each dated as of
September 15, 1987 (collectively, the "NOTE AGREEMENTS") entered into by the
Company with the institutional investors named in Schedule I thereto as amended
by that certain First Amendment dated as of November 15, 1996, as amended by
that certain Second Amendment dated as of November 15, 1996 and as amended by
that certain Third Amendment Agreement dated as of January 15, 1997. This Note
and the holder hereof are entitled equally
Exhibit A
(to Third Amentment Agreement)
and ratably with the holders of all other Notes outstanding under the Note
Agreements to all the benefits provided for thereby or referred to therein,
to which Note Agreements reference is hereby made for the statement thereof.
This Note amends and restates in its entirety that certain 9.9% Senior Note
Number R-___, in the original principal amount of $__________ issued by the
Company on ____ and registered in the name of __________________.
This Note and the other Notes outstanding under the Note Agreements may
be declared due prior to their expressed maturity date and certain
prepayments are required to be made thereon by the Company, all in the
events, on the terms and in the manner and amounts as provided in the Note
Agreements.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Note Agreements.
Notwithstanding anything contained herein to the contrary, in addition
to the stated interest rate applicable to the Notes (including, without
limitation, the interest rate applicable to overdue payments in respect of
the Notes), the Notes shall bear additional interest at the rate of .50% per
annum during any Interest Rate Event Period (as defined in the Note
Agreements).
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This Note is registered on the books of the Company and is transferable
only by surrender thereof at the principal office of the Company duly
endorsed or accompanied by a written statement of transfer duly executed by
the registered holder of this Note or his attorney duly authorized in
writing. Payment of or on account of principal, premium, if any, and interest
on this Note shall be made only to or upon the order in writing of the
registered holder.
XXXX-XXXXX COMPANY
By
Its
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DESCRIPTION OF CLOSING OPINION
OF COUNSEL TO THE COMPANY
The closing opinion of counsel for the Company called for by SECTION
4.1(c) of the Third Amendment Agreement, shall be dated the Effective Date
and addressed to the Noteholders, shall be satisfactory in scope and form to
the Noteholders and shall be to the effect that:
1. The Company is a corporation that is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, has the requisite power and the authority to execute and
perform the Note Agreements, as amended, and to issue the Notes, as
amended, and has the full requisite power and the authority to conduct
the activities in which it is now engaged.
2. Each Note Agreement, as amended, has been duly authorized by
all necessary action on the part of the Company, has been duly executed
and delivered by the Company and constitutes the legal, valid and
binding contract of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
3. The Notes, as amended, have been duly authorized by all
necessary action on the part of the Company, have been duly executed and
delivered by the Company and constitute the legal, valid and binding
obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
The opinion of Xxx X. Xxxxxxx, Esq. shall cover such other matters relating
to the Third Amendment Agreement as the holders of the Notes may reasonably
request. With respect to matters of fact on which such opinion is based, such
counsel shall be entitled to rely on appropriate certificates of public
officials and officers of the Company.
EXHIBIT B
(to Third Amendment Agreement)
SCHEDULE I
SHER CO. (AS NOMINEE OF IDS $5,400,000 R-1
Life Insurance Company) 9.9% Senior Notes
Xxxxxx & Co. (as nominee of $600,000 R-2
IDS Life Insurance Company 9.9% Senior Notes
of New York)
Schedule I
