THIRD AMENDMENT TO NOTE PURCHASE AGREEMENTS
Exhibit 10.4
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS THIRD AMENDMENT, dated as of May 31, 2007 (this “Amendment”) to those certain separate
Note Purchase Agreements, each dated as of August 23, 2000 (as amended by that certain First
Amendment to Note Purchase Agreements, dated as of November 30, 2001, and that certain Second
Amendment to Note Purchase Agreements, dated as of May 27, 2004, and as in effect immediately prior
to the effectiveness of this Amendment, collectively, the “Existing Note Purchase Agreement”),
among The X. X. Xxxxxxx Company, an Ohio corporation (the “Company”), and the purchasers signatory
thereto (together with their successors, transferees and assigns, collectively, the “Noteholders”)
pursuant to which the Company issued to the Noteholders its (i) 7.70% Series A Senior Notes due
September 1, 2005 in the aggregate principal amount of $17,000,000 (which Series A Senior Notes
have been fully paid and are no longer outstanding), (ii) 7.87% Series B Senior Notes due September
1, 2007 in the aggregate principal amount of $33,000,000 (the “Series B Notes”) and (iii) 7.94%
Series C Senior Notes due September 1, 2010, in the aggregate principal amount of $10,000,000 (the
“Series C Notes” and together with the Series B Notes, as may be amended or modified, from time to
time, the “Notes”).
RECITALS:
A. The Noteholders are the holders of all of the outstanding Notes.
B. Capitalized terms used herein shall have the respective meanings ascribed thereto in the
Existing Note Purchase Agreement unless herein defined or the context shall otherwise require.
C. The Company and the Noteholders now desire to amend the Existing Note Purchase Agreement in
the respects, but only in the respects, hereinafter set forth.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Company and the Noteholders do hereby agree as follows:
1. AMENDMENTS; WAIVER.
1.1. Amendment to Section 7.1(a) (Quarterly Statements).
Section 7.1(a) of the Existing Note Purchase Agreement is hereby deleted in its entirety, and
a new Section 7.1(a) is hereby inserted in its place, to read as follows:
(a) Quarterly Statements — within 90 days (or within 10 days after such
earlier date as the Company’s quarterly report is required to be filed with the Securities
and Exchange Commission under the Exchange Act, with written notice of such earlier filing
to be delivered to each holder of Notes simultaneously with such filing) after the end of
each quarterly fiscal period in each fiscal year of the Company (other than the last
quarterly fiscal period of each such fiscal year), duplicate copies of,
(i) a consolidated balance sheet of the Company and its Subsidiaries as at the
end of such quarter, and
(ii) consolidated statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries, for such quarter and (in the case of
the second and third quarters) for the portion of the fiscal year ending with such
quarter,
setting forth in each case in comparative form the figures for the corresponding periods in
the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows, subject to
changes resulting from year-end adjustments, provided that delivery within the time period
specified above of copies of the Company’s Quarterly Report on Form 10-Q prepared in
compliance with the requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section 7.1(a), and provided,
further, that the Company shall be deemed to have made such delivery of such Form 10 Q if it
shall have timely made such Form 10 Q available on “XXXXX” and on its home page on the
worldwide web (at the date of this Agreement located at: http//xxx.xxxxxxx.xxx) and shall
have given such holder prior notice of such availability on XXXXX and on its home page in
connection with each delivery (such availability and notice thereof being referred to as
“Electronic Delivery”);
1.2. Amendment to Section 7.1(b) (Annual Statements).
Section 7.1(b) of the Existing Note Purchase Agreement is hereby deleted in its entirety, and
a new Section 7.1(b) is hereby inserted in its place, to read as follows:
(b) Annual Statements — within 120 days (or within 10 days after such earlier
date as the Company’s annual report is required to be filed with the U.S. Securities and
Exchange Commission under the Exchange Act, with written notice of such earlier filing to be
delivered to each holder of Notes simultaneously with such filing) after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its Subsidiaries, as at the
end of such year, and
(ii) consolidated statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion
thereon of independent certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in all material respects,
the financial position of the companies being reported upon and their results of operations
and cash flows and have been prepared in conformity with GAAP, and that the
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examination of such accountants in connection with such financial statements has been made
in accordance with generally accepted auditing standards, and that such audit provides a
reasonable basis for such opinion in the circumstances, provided that the delivery within
the time period specified above of the Company’s Annual Report on Form 10-K for such fiscal
year (together with the Company’s annual report to shareholders, if any, prepared pursuant
to Rule 14a-3 under the Exchange Act) prepared in accordance with the requirements therefor
and filed with the Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(b), and provided, further, that the Company shall be deemed
to have made such delivery of such Form 10 K if it shall have timely made Electronic
Delivery thereof;
1.3. Amendment to Section 7.2 (Officer’s Certificate).
The first sentence of Section 7.2 of the Existing Note Purchase Agreement is hereby deleted in
its entirety, and a new first sentence of Section 7.2 is hereby inserted in its place, to read as
follows:
7.2. Officer’s Certificate.
Each set of financial statements delivered to a holder of Notes pursuant to Section 7.1(a) or
Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer setting forth
(which, in the case of Electronic Delivery of any such financial statements, shall be by separate
concurrent delivery of such certificate to each holder of Notes):
1.4. Amendment to Section 8.3(e) (Prepayment).
Section 8.3(e) of the Existing Note Purchase Agreement is hereby deleted in its entirety, and
a new Section 8.3(e) is hereby inserted in its place, to read as follows:
(e) Prepayment. Prepayment of the Notes to be prepaid pursuant to this Section
8.3 shall be at 100% of the principal amount of such Notes, plus the Make-Whole Amount
determined for the date of prepayment with respect to such principal amount, together with
interest on such Notes accrued to the date of prepayment. Two Business Days preceding the
date of prepayment, the Company shall deliver to each holder of Notes being prepaid a
certificate of a Senior Financial Officer specifying the calculation of the Make-Whole
Amount due in connection with such prepayment (for the avoidance of doubt, in respect of any
prepayment to be made under this Section 8.3 the date of which has been deferred pursuant to
Section 8.3(f) below, any calculation of accrued interest or Make-Whole Amount owing to the
holders of the Notes to be prepaid shall be made with reference to the date such prepayment
is actually made, rather than the original Proposed Prepayment Date in respect thereof).
The prepayment shall be made on the Proposed Prepayment Date except as provided in Section
8.3(f).
1.5. Amendment to Section 9.6 (Pari Passu Ranking).
Section 9.6 of the Existing Note Purchase Agreement is hereby deleted in its entirety, and a
new Section 9.6 is hereby inserted in its place, to read as follows:
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9.6. Pari Passu Ranking.
The Notes shall at all times rank pari passu, without preference or priority, with all other
outstanding, unsecured, unsubordinated Indebtedness of the Company, present and future, that have
not been accorded preferential rights. The obligations of each Subsidiary Guarantor under the
Guaranty Agreement to which such Subsidiary Guarantor is a party shall at all times rank pari
passu, without preference or priority, with all other outstanding, unsecured, unsubordinated
Indebtedness of such Subsidiary Guarantor, present and future, that have not been accorded
preferential rights.
1.6. Amendment to Section 10.2(a) (Merger, Consolidation, etc.)
Section 10.2(a) of the Existing Note Purchase Agreement is hereby amended by inserting the
following phrase after the words “solvent corporation”:
, limited liability company or (in the case of a Subsidiary Guarantor) limited partnership.
1.7. Amendment to Section 10.3 (Consolidated Net Worth).
Section 10.3 of the Existing Note Purchase Agreement is hereby deleted in its entirety, and a
new Section 10.3 is hereby inserted in its place, to read as follows:
10.3 Consolidated Net Worth.
The Company will not, at any time, permit Consolidated Net Worth to be less than One Billion
Dollars ($1,000,000,000).
1.8. Amendment to Section 10 (Negative Covenants).
Section 10 of the Existing Note Purchase Agreement is hereby amended by inserting a new
Section 10.11 at the end thereof, to read in its entirety as follows:
10.11 Terrorism Sanctions Regulations.
The Company will not and will not permit any Subsidiary to (a) become a Person described or
designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign
Assets Control or in Section 1 of the Anti-Terrorism Order or (b) engage in any dealings or
transactions with any such Person.
1.9. Amendment to Section 15.1 (Transaction Expenses).
Section 15.1 of the Existing Note Purchase Agreement is hereby amended by inserting the phrase
“, the Intercreditor Agreement” after the word “Notes” on the fifth and 11th line of such section.
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1.10. Amendment to Section 21.6 (Governing Law).
Section 21.6 of the Existing Note Purchase Agreement entitled “Governing Law” is hereby
renumbered as Section 21.7 and the following new Section 21.6 entitled “Accounting Terms” and new
Section 21.8 entitled “Jurisdiction and Process; Waiver of Jury Trial” are hereby added to the
Existing Note Purchase Agreement so that Section 21.6, Section 21.7 and Section 21.8 read as
follows:
21.6. Accounting Terms.
All accounting terms used herein which are not expressly defined in this Agreement have the
meanings respectively given to them in accordance with GAAP. Except as otherwise specifically
provided herein, (a) all computations made pursuant to this Agreement shall be made in accordance
with GAAP, and (b) all financial statements shall be prepared in accordance with GAAP.
21.7. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES
OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
21.8. Jurisdiction and Process; Waiver of Jury Trial.
(a) The Company irrevocably submits to the non-exclusive jurisdiction of any New York
State or federal court sitting in the Borough of Manhattan, The City of New York, over any
suit, action or proceeding arising out of or relating to this Agreement or the Notes. To
the fullest extent permitted by applicable law, the Company irrevocably waives and agrees
not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject
to the jurisdiction of any such court, any objection that it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
(b) The Company consents to process being served by or on behalf of any holder of Notes
in any suit, action or proceeding of the nature referred to in Section 21.8(a) by mailing a
copy thereof by registered or certified mail (or any substantially similar form of mail),
postage prepaid, return receipt requested, to it at its address specified in Section 18 or
at such other address of which such holder shall then have been notified pursuant to said
Section. The Company agrees that such service upon receipt (i) shall be deemed in every
respect effective service of process upon it in any such suit, action or proceeding and (ii)
shall, to the fullest extent permitted by applicable law, be taken and held to be valid
personal service upon and personal delivery to it. Notices hereunder shall be conclusively
presumed received as evidenced by a delivery receipt furnished by the United States Postal
Service or any reputable commercial delivery service.
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(c) Nothing in this Section 21.8 shall affect the right of any holder of a Note to
serve process in any manner permitted by law, or limit any right that the holders of any of
the Notes may have to bring proceedings against the Company in the courts of any appropriate
jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in
any other jurisdiction.
(d) The parties hereto hereby waive trial by jury in any action brought on or with
respect to this Agreement, the Notes or any other document executed in connection herewith
or therewith.
1.11. Deletion of Defined Terms; MIX Acquisition Company.
The definitions of “Largest Other Shareholder”, “MIX” and “Special Voting Power” are each
hereby deleted from Schedule B to the Existing Note Purchase Agreement. All references to “MIX” in
the Existing Note Purchase Agreement shall hereinafter refer to “Xxxxxxx LLC”.
1.12. Amendments to Schedule B.
Schedule B to the Existing Note Purchase Agreement is hereby amended by inserting the
following new definitions into such Schedule, in their proper alphabetical order, to read as
follows:
“Anti-Terrorism Order” means Executive Order No. 13,224 of September 23, 2001, Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49079 (2001), as amended.
“Electronic Delivery” is defined in Section 7.1(a).
“Intercreditor Agreement” means that certain Amended and Restated Intercreditor Agreement,
dated as of May 31, 2007, by and among the Purchasers, the 1999 Noteholders, the 2004 Noteholders,
the 2007 Noteholders and the Agent (each as defined therein) and acknowledged and agreed to by the
Company and Xxxxxxx LLC (as the same may be amended, restated, supplemented or otherwise modified
and in effect from time to time).
“Material Indebtedness Agreement” means any debt instrument, lease (capital, operating or
otherwise), guaranty, contract, commitment, agreement or other arrangement evidencing any
Indebtedness of the Company in excess of the amount of Fifteen Million Dollars ($15,000,000).
“Xxxxxxx LLC” means X.X. Xxxxxxx LLC, an Ohio limited liability company.
“2007 Note Agreement” means, that certain Note Purchase Agreement, dated as of May 31, 2007,
among the Company and each of the Persons listed on Schedule A thereto, as the same may be amended,
restated, modified or otherwise supplemented and in effect from time to time.
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1.13. Amendment and Restatement of Defined Terms; Schedule B.
The definitions of “Bank Credit Agreement”, “Change in Control”, “1999 Note Agreement”,
“Priority Debt”, “Responsible Officer”, “2004 Note Agreement” and “USA Patriot Act” set forth in
Schedule B to the Existing Note Purchase Agreement are hereby deleted in their entirety, and the
following new definitions are hereby inserted in their place, to read as follows:
“Bank Credit Agreement” means that certain unsecured revolving credit facility by and among
the Company, Key Bank National Association, as Agent, and the lenders named therein, dated as of
June 18, 2004, as such agreement may be amended or restated from time to time.
“Change in Control” means:
(a) the acquisition of, or, if earlier, the shareholder or director approval of the
acquisition of, ownership or voting control, directly or indirectly, beneficially (as a
“beneficial owner” as such term is used in Rule 13d-3 under the Exchange Act as in effect on
the date of the Closing) or of record, on or after the date of the Closing, by any person
(within the meaning of section 13(d) and section 14(d)(2) of the Exchange Act as in effect
on the date of the Closing) or related persons constituting a group (within the meaning of
Rule 13d-5 of the SEC under the Exchange Act, as in effect on the date of the Closing) of shares representing more than forty-five percent (45%) of the aggregate Ordinary Voting
Power represented by the issued and outstanding capital stock of the Company (calculated on
a fully diluted basis); provided that the foregoing restriction shall not apply to
acquisitions of capital stock by the Xxxxxxx Family if the acquisition by the Xxxxxxx Family
of such Ordinary Voting Power shall not result, directly or indirectly, in a “going private
transaction” within the meaning of the Exchange Act;
(b) during any period of twenty-four (24) consecutive calendar months, individuals who
were directors of the Company on the first day of such period (together with any new
director whose election by the board of directors of the Company or whose nomination for
election by the stockholders of the Company was approved by a vote of at least a majority 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) shall cease to
constitute a majority of the board of directors of the Company;
(c) the sale or transfer of all or substantially all of the assets of the Company, in a
single transaction or a series of related transactions, to any person (within the meaning of
section 13(d) and section 14(d)(2) of the Exchange Act, as in effect on the date of the
Closing) or related persons constituting a group (within the meaning of Rule 13d-5 of the
SEC under the Exchange Act, as in effect on the date of the Closing);
(d) the occurrence of a change in control, or other similar provision, as defined in
any Material Indebtedness Agreement, which causes any Indebtedness or other obligations
incurred under such Material Indebtedness Agreement to become due prior to its stated
maturity or other due date thereof or to cause the holders of Indebtedness or other
obligations thereunder to have the right to require any Indebtedness or other obligations
incurred under such Material Indebtedness Agreement to be purchased or prepaid prior to the
stated maturity or other due date thereof; or
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(e) the failure of at least one of Xxxxxxx X. Xxxxxxx or Xxxxxxx X. Xxxxxxx to serve as
a director of the Company if such failure to serve as a director is due to: (i) the
voluntary resignation as a director of such person prior to his 70th birthday (unless such
resignation is due to poor health, in which case such resignation will not be deemed to be
“voluntary” for purposes of this definition), (ii) the voluntary decision of such person not
to stand for reelection as a director unless such re-election would be for a term commencing
after his 70th birthday or such decision is attributable to poor health, (iii) a
determination of the directors of the Company not to nominate such person to stand for
re-election for any term commencing prior to his 70th birthday (unless such decision was
attributable to such person’s poor health), or (iv) the failure of the shareholders to elect
such person for any term commencing prior to his 70th birthday. For purposes of clarity, it
shall not constitute a Change in Control (1) so long as either Xxxxxxx X. Xxxxxxx or Xxxxxxx
X. Xxxxxxx is serving as director of the Company, or (2) if neither Xxxxxxx X. Xxxxxxx or
Xxxxxxx X. Xxxxxxx is serving as a director, the Remaining Director is no longer serving as
a director as a result of an event other than one described in clause (i), (ii), (iii), or
(iv) of the preceding sentence. For purposes of this definition “Remaining Director” means
the last one of Xxxxxxx X. Xxxxxxx or Xxxxxxx X. Xxxxxxx to serve as a director of the
Company.
“1999 Note Agreement” means, collectively, those certain Note Purchase Agreements, each dated
as of June 16, 1999, among the Company and each of the Persons listed on Schedule A thereto, as the
same may be amended, restated, modified or otherwise supplemented and in effect from time to time.
“Priority Debt” means the sum of (a) all Debt of the Company secured by Liens permitted by
Section 10.7(g), (b) all Debt of Subsidiaries (other than (x) Debt held by the Company or a
Wholly-Owned Subsidiary or (y) Debt of any Subsidiary Guarantor, so long as such Debt is subject to
the terms of the Intercreditor Agreement) and (c) Consolidated Attributable Debt.
“Responsible Officer” means any Senior Financial Officer and any other officer of the Company
or any Subsidiary Guarantor with responsibility for the administration of the relevant portion of
this Agreement.
“2004 Note Agreement” means that certain Note Purchase Agreement, dated as of May 27, 2004,
among the Company and each of the Persons listed on Schedule A thereto, as the same may be amended,
restated, modified or otherwise supplemented and in effect from time to time.
“USA Patriot Act” means United States Public Law 107-56, the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act
of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from
time to time in effect.
1.14. Waiver of Event of Default.
Effective as of June 30, 2006, and in reliance upon the amendment and restatement as
contemplated by Section 4.4 below, by X.X. Xxxxxxx LLC, an Ohio limited liability company (“Xxxxxxx
LLC”), as successor in interest to MIX Acquisition Corporation, of that certain
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guaranty agreement, dated as of May 27, 2004, by MIX Acquisition Corporation in respect of the
obligations of the Company under the Existing Note Purchase Agreement and the Notes, the
Noteholders hereby waive any Default or Event of Default that exists as the result of the failure
of Xxxxxxx LLC to deliver, pursuant to the provisions of Section 10.2(a) of the Existing Note
Agreement, an assumption in writing of the obligations of MIX Acquisition Corporation under such
guaranty agreement.
2. NO OTHER MODIFICATIONS; CONFIRMATION.
All the provisions of the Notes, and, except as expressly amended, modified and supplemented
hereby, all the provisions of the Existing Note Purchase Agreement, are and shall remain in full
force and effect. As of the Effective Date (defined below), all references in the Notes to the
“Note Purchase Agreements” shall be references to the Existing Note Purchase Agreement, as modified
by this Amendment and as hereafter amended, modified or supplemented in accordance with its terms.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to execute and deliver this Amendment (which representations shall
survive such execution and delivery), the Company represents and warrants to the Noteholders that:
(a) all of the representations and warranties contained in Section 5 of the Existing
Note Purchase Agreement are correct with the same force and effect as if made by the Company
on the date hereof (or, if any representation or warranty is expressly stated to have been
made as of a specific date, as of such date);
(b) Xxxxxxx LLC is a limited liability company duly organized, validly existing and in
good standing under the laws of the state of Ohio;
(c) this Amendment and the Guaranty Agreement (as defined below) have been duly
authorized, executed and delivered by the Company and Xxxxxxx LLC, respectively, and this
Amendment and the Guaranty Agreement each constitutes a legal, valid and binding obligation,
contract and agreement of the Company and Xxxxxxx LLC, respectively, 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;
(d) the Existing Note Purchase Agreement, as amended by this Amendment, constitutes the
legal, valid and binding obligation, contract and agreement of the Company 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;
(e) the execution, delivery and performance by each of the Company and Xxxxxxx LLC of
this Amendment and the Guaranty Agreement, respectively, (i) have been duly authorized by
all requisite corporate or limited liability company, as applicable, action and, if
required, shareholder action, (ii) does not require the consent or approval of
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any governmental or regulatory body or agency or registration, filing or declaration
with, any Governmental Authority, and (iii) will not (A) violate (1) any provision of law,
statute, rule or regulation or its certificate of incorporation, bylaws or operating
agreement, (2) any order of any court or any rule, regulation or order of any other agency
or government binding upon it, or (3) any provision of any material indenture, agreement or
other instrument to which it is a party or by which its properties or assets are or may be
bound, or (B) result in a breach of or constitute (alone or with due notice or lapse of time
or both) a default under any indenture, agreement or other instrument referred to in clause
(iii)(A)(3) of this paragraph (e);
(f) as of the date hereof and after giving effect to this Amendment, no Default or
Event of Default has occurred which is continuing;
(g) neither the Company nor any Subsidiary (i) is a Person described or designated in
the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets
Control or in Section 1 of the Anti-Terrorism Order or (ii) engages in any dealings or
transactions with any such Person; and
(h) neither the Company nor any Subsidiary is in violation of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT ACT) Act of 2001 of the United States of America.
4. EFFECTIVENESS.
The amendments and waiver set forth in this Amendment shall become effective only upon the
date of the satisfaction in full of the following conditions precedent (which date shall be the
“Effective Date”).
4.1. Execution and Delivery of this Amendment.
The Company shall have delivered to each Noteholder a counterpart hereof, duly executed and
delivered by the Company and each of the Noteholders.
4.2. Representations and Warranties.
The representations and warranties of the Company made in Section 3 of this Amendment and of
Xxxxxxx LLC in the Guaranty Agreement shall remain true and correct in all respects as of the
Effective Date.
4.3. No Injunction, Etc.
No injunction, writ, restraining order or other order of any nature prohibiting, directly or
indirectly, the consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority.
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4.4. Guaranty Agreement.
Xxxxxxx LLC, a Wholly-Owned Subsidiary of the Company, shall have executed and delivered to
each Noteholder an amended and restated guaranty agreement (as may be amended, restated or modified
from time to time, the “Guaranty Agreement”) in respect of the obligations evidenced by the
Existing Note Purchase Agreement and the Notes, in form and substance satisfactory to each
Noteholder.
4.5. Xxxxxxx LLC Secretary’s Certificate.
Xxxxxxx LLC shall have delivered to each Noteholder a certificate of an officer of Xxxxxxx LLC
certifying as to the resolutions attached thereto and other corporate or other proceedings relating
to the authorization, execution and delivery by Xxxxxxx LLC of the Guaranty Agreement.
4.6. Amendment to 1999 Note Purchase Agreements.
The Company shall have delivered to the Noteholders a fully executed copy of that certain
Third Amendment to Note Purchase Agreements, dated as of May 31, 2007, by and among the Company and
each of the Persons signatory thereto with respect to those certain separate Note Purchase
Agreements, each dated as of June 16, 1999, together with each of the other instruments and
agreements executed and/or delivered in connection therewith, each certified as true and correct by
a Responsible Officer.
4.7. Amendment to 2004 Note Purchase Agreement.
The Company shall have delivered to the Noteholders a fully executed copy of that certain
First Amendment to Note Purchase Agreement, dated as of May 31, 2007, by and among the Company and
each of the Persons signatory thereto with respect to that certain Note Purchase Agreement, dated
as of May 27, 2004, together with each of the other instruments and agreements executed and/or
delivered in connection therewith, each certified as true and correct by a Responsible Officer.
4.8. 2007 Note Purchase Agreement.
The Company shall have delivered to the Noteholders a fully executed copy of that certain Note
Purchase Agreement, dated as of May 31, 2007, by and among the Company and each of the Persons
listed on Schedule A thereto, pursuant to which the Company has issued to such Persons its 5.55%
Senior Notes due April 1, 2022 in the aggregate principal amount of $400,000,000, together with
each of the other instruments and agreements executed and/or delivered in connection therewith,
each certified as true and correct by a Responsible Officer.
4.9. Amendment and Restatement of Intercreditor Agreement.
The Company shall have delivered to each Noteholder a fully-executed original of an Amended
and Restated Intercreditor Agreement, dated as of May 31, 2007, by and among the Noteholders, the
1999 Noteholders, the 2004 Noteholders, the 2007 Noteholders and the Agent (each as defined
therein) and acknowledged and agreed to by the Company and Xxxxxxx LLC.
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4.10. Payment of Special Counsel Fees.
The Company shall have paid on or before the Effective Date the reasonable fees, charges and
disbursements of Xxxxxxx XxXxxxxxx LLP, the Noteholders’ special counsel, to the extent reflected
in a statement of such counsel rendered to the Company at least one Business Day prior to the
Effective Date.
5. EXPENSES.
Whether or not this Amendment shall become effective, the Company will promptly (and in any
event within thirty (30) days of receiving any statement or invoice therefor) pay all fees,
expenses and costs relating to this Amendment, including, but not limited to, the reasonable fees
of the Noteholders’ special counsel, Xxxxxxx XxXxxxxxx LLP, incurred in connection with the
preparation, negotiations and delivery of this Amendment and any other documents related thereto.
In addition, the Company will pay all such fees, expenses and costs set forth in any subsequent
statement within 30 days of its receipt thereof. Nothing in this Section 5 shall limit the
Company’s obligations pursuant to Section 15.1 of the Existing Note Purchase Agreement.
6. MISCELLANEOUS.
6.1. This Amendment constitutes a contract between the Company and the Noteholders for the
uses and purposes hereinabove set forth, and may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together only one agreement. Each
counterpart may consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto. Delivery of an executed signature page by facsimile
transmission shall be effective as delivery of a manually signed counterpart of this Amendment.
6.2. Whenever any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party, and all the promises and agreements contained in
this Amendment by or on behalf of the Company and the Noteholders shall bind and inure to the
benefit of the respective successors and assigns of such parties, whether so expressed or not.
6.3. This Amendment constitutes the final written expression of all of the terms hereof and is
a complete and exclusive statement of those terms.
6.4. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES
OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
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12
IN WITNESS WHEREOF, the parties hereto have caused the execution of this Amendment by duly
authorized officers of each as of the date hereof.
| THE X. X. XXXXXXX COMPANY | ||||||
| By: Name: |
/s/ Xxxx X. Xxxxxx
|
|||||
| Title: | Vice President and Treasurer | |||||
[Signature page to Third Amendment to The X.X. Xxxxxxx Company 2000 Note Purchase Agreements]
| Accepted and Agreed to: | ||||
| METLIFE INSURANCE COMPANY OF CONNECTICUT | ||||
By: Name: |
/s/ Xxxxxx X. Xxxxxxx
|
|||
Title:
|
Director | |||
[Signature page to Third Amendment to The X.X. Xxxxxxx Company 2000 Note Purchase Agreements]
| PRUDENTIAL RETIREMENT INSURANCE | ||||||
| AND ANNUITY COMPANY | ||||||
| By: | Prudential Investment Management, Inc., | |||||
| as investment manager | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxxxx
|
|||||
| Title: | Vice President | |||||
[Signature page to Third Amendment to The X.X. Xxxxxxx Company 2000 Note Purchase Agreements]
| HARTFORD LIFE INSURANCE COMPANY | ||||||
| By: | Hartford Investment Services, Inc., | |||||
| its Agent and Attorney-in-Fact | ||||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Senior Vice President | |||||
[Signature page to Third Amendment to The X.X. Xxxxxxx Company 2000 Note Purchase Agreements]
| NATIONWIDE MUTUAL FIRE INSURANCE COMPANY | ||||
By: Name: |
/s/ Xxxxxx X. Xxxxx
|
|||
Title:
|
Authorized Signatory | |||
[Signature page to Third Amendment to The X.X. Xxxxxxx Company 2000 Note Purchase Agreements]
| MODERN WOODMEN OF AMERICA | ||||
By: Name: |
/s/ Xxxxxxx X. Xxx
|
|||
Title:
|
Manager, Fixed Income Division | |||
[Signature page to Third Amendment to The X.X. Xxxxxxx Company 2000 Note Purchase Agreements]
| PREMIER INSURANCE COMPANY OF MASSACHUSETTS | |||||
By: Name: |
/s/ Xxxxx X. Xxxxxxx
|
||||
Title:
|
Sr. Vice President | ||||
| FIRST TRENTON INDEMNITY COMPANY | |||||
By: Name: |
/s/ Xxxxx X. Xxxxxxx
|
||||
Title:
|
Sr. Vice President | ||||
[Signature page to Third Amendment to The X.X. Xxxxxxx Company 2000 Note Purchase Agreements]
