Contract
Exhibit 10.5.2
Execution Version
AMENDMENT
TO ESCROW AGREEMENT (this “Amendment”), dated as of the 8th day of June, 2006,
by and among AFG Enterprises USA, Inc., a Nevada corporation (the “Company”); The
Bank of New York, a New York banking corporation, as Escrow Agent (in such
capacity, the “Escrow Agent”); The Bank of New York, a New York banking
corporation, as Collateral Agent (in such capacity, the “Collateral Agent”)
under that certain Security Agreement with the Company and The Bank of New
York, a New York banking corporation, as Trustee for the holders of certain
notes of the Company (in such capacity, the “Trustee”) under that certain Indenture
dated as of March 29, 2006 (the “Indenture”) with the Company. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Escrow Agreement (as
defined below).
WITNESSETH:
WHEREAS, in connection with the Indenture, the Company issued and sold the Notes to the Holders and entered into that certain Escrow Agreement dated as of March 29, 2006 (the “Escrow Agreement”) among the Company, the Escrow Agent, the Collateral Agent and the Trustee;
WHEREAS, the Company, the Escrow Agent, the Collateral Agent and the Trustee wish to amend the terms of the Escrow Agreement to permit investment of Escrow Property in U.S. Treasury Notes or Bills, in each case with maturity dates not later than 90 days after the date of investment; and
WHEREAS, pursuant to the terms of the Escrow Agreement, the Company wishes to instruct the Escrow Agent to invest the Escrow Property in U.S. Treasury Bills with maturity dates of 90 days after the date of investment.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto do hereby agree as follows:
1. Amendment to Escrow Agreement. In accordance with Section 13 of the Escrow Agreement, Section 3(b) of the Escrow Agreement is hereby amended by deleting it in its entirety and inserting the following in lieu thereof:
“x (b) The Escrow Property shall be invested in U.S. Treasury Notes or Bills, in each case with maturity dates not later than 90 days after the date of investment, and/or “money market” funds of banks or trust companies that are members of the United States Federal Reserve System having a minimum net worth of $1 billion. The Escrow Agent shall invest the Escrow Property in accordance with the written instructions of the Company; provided that such instructions shall comply with the restrictions of the first sentence of this Section 3(b). In the absence of written instructions from the Company, the Escrow Agent is hereby authorized to invest the Escrow Property in U.S. Treasury Bills with maturity dates not later than 30 days after the date of investment. The Escrow Agent shall pay to the party or parties entitled to delivery of the
Escrow Property the amount of income actually received, if any, from the investment of the cash comprising the Escrow Property in accordance with the terms of this Agreement.”
2. Instruction to Invest Escrow Property. Provided that such written instructions shall comply with the first sentence of Section 3(b) of the Escrow Agreement as amended hereby; the Escrow Agent shall invest the Escrow Property in accordance with the written instructions of the Company until otherwise instructed by the Company (in compliance with Section 3(b) of the Escrow Agreement as amended hereby).
3. No Modifications. Except as amended hereby, the terms and conditions of the Escrow Agreement shall continue in full force and effect and is hereby in all respects ratified and confirmed.
4. Binding Effect. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
5. Governing Law. This Amendment, and all matters arising out of or relating to the subject matter hereof, shall be governed by, and construed in accordance with, the laws of the State of New York.
6. Severability. If one or more provisions of this Amendment are held to be unenforceable under applicable law, such provisions shall be excluded from this Amendment and the balance of this Amendment shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
7. Counterparts. This Amendment may be executed in counterparts, each of which shall be deemed an original, and all of which together shall be deemed to constitute one and the same instrument.
[Signature pages follow]
IN WITNESS WHEREOF, this Amendment has been executed as of the date and year first written above.
|
AFG ENTERPRISES USA, INC. |
||
|
|
||
|
|
||
|
By: |
/s/ Xxxxxxx Xxxxx |
|
|
Name: Xxxxxxx Xxxxx |
||
|
Title: Chief Financial officer |
||
|
|
||
|
|
||
|
THE BANK OF NEW YORK, |
||
|
as Escrow Agent |
||
|
|
||
|
|
||
|
By: |
/s/ Xxxxxxxx Xxxxxx |
|
|
Name: Xxxxxxxx Xxxxxx |
||
|
Title: Vice President |
||
|
|
||
|
|
||
|
THE BANK OF NEW YORK, |
||
|
as Collateral Agent |
||
|
|
||
|
|
||
|
By: |
/s/ Xxxxxxxx Xxxxxx |
|
|
Name: Xxxxxxxx Xxxxxx |
||
|
Title: Vice President |
||
|
|
||
|
|
||
|
THE BANK OF NEW YORK, |
||
|
as Trustee |
||
|
|
||
|
|
||
|
By: |
/s/ Xxxxxxxx Xxxxxx |
|
|
Name: Xxxxxxxx Xxxxxx |
||
|
Title: Vice President |
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
AMATIS LIMITED, |
$13,500,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
By: Amaranth Advisors L.L.C., its Trading Advisor |
|
||
|
|
||
By: |
/s/ Xxxx Xxxxxxx |
|
|
Name: Xxxx X. Xxxxxxx |
|
||
Title: Authorized Signatory |
|
||
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
XXXXXXXX SPC, LTD. for and on behalf of the Class A |
|
||
Convertible Crossover Segregated Portfolio, |
$8,750,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ Xxxxxx X. Xxxxxxxxxx |
|
|
Name: Xxxxxx X. Xxxxxxxxxx |
|
||
Title: Managing Director |
|
||
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
CONTEXT ADVANTAGE FUND, LTD formerly |
|
||
CONTEXT CONVERTIBLE |
|
||
ARBITRAGE OFFSHORE, LTD, |
$3,100,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
Name: Xxxxxxx X. Xxxxx |
|
||
Title: CEO & Co-Chairman |
|
||
Context Capital Management LLC |
|
||
Investment Advisor |
|
||
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
CONTEXT ADVANTAGE FUND, LP formerly |
|
||
CONTEXT CONVERTIBLE |
|
||
ARBITRAGE FUND, LP, |
$900,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ Xxxxxxx X. Xxxxx |
|
|
Name: Xxxxxxx X. Xxxxx |
|
||
Title: CEO & Co-Chairman |
|
||
Context Capital Management LLC |
|
||
General Partner |
|
||
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
WOLVERINE CONVERTIBLE |
|
||
ARBITRAGE FUND TRADING LIMITED, |
$1,000,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ Xxxxx X. Xxxxxxxx |
|
|
Name: Xxxxx X. Xxxxxxxx |
|
||
Title: CEO |
|
||
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
PORTSIDE GROWTH AND |
|
||
OPPORTUNITY FUND, |
$2,000,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ Xxxxxxx Xxxxx |
|
|
Name: Xxxxxxx Xxxxx |
|
||
Title: Authorized Signatory |
|
||
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
CHEYNE FUND LP, |
$4,400,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ X. Xxxxxxxxx |
|
|
Name: X. Xxxxxxxxx |
|
||
Title: Portfolio Manager |
|
||
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
CHEYNE LEVERAGE FUND, |
$3,600,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ X. Xxxxxxxxx |
|
|
Name: X. Xxxxxxxxx |
|
||
Title: Portfolio Manager |
|
||
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
CRANSHIRE CAPITAL, LP, |
$500,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ Xxxxxxxx X. Xxxxxxx |
|
|
Name: Xxxxxxxx X. Xxxxxxx |
|
||
Title: CFO – Downsview Capital, Inc. |
|
||
The General Partner |
|
||
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
JMG CAPITAL PARTNERS, LP, |
$3,375,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ Xxxxxxxx Xxxxxx |
|
|
Name: Xxxxxxxx Xxxxxx |
|
||
Title: Member Manager of the GP |
|
||
ACCEPTANCE AND AGREEMENT
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
JMG TRITON OFFSHORE FUND, LTD., |
$3,375,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ Xxxxxxxx Xxxxxx |
|
|
Name: Xxxxxxxx Xxxxxx |
|
||
Title: Member Manager of the Investment Manager |
|
||
ACCEPTANCE AND AGREEMENT
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
PLEXUS FUND LIMITED, |
$2,500,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ X. Xxxxxxxxxx (Partner) |
|
|
Name: Xxxxxxx Xxxxxxxxxx |
|
||
Title: 6/16/06 |
|
||
ACCEPTANCE AND AGREEMENT
Each Holder, by executing this document, represents, as to itself only, that as of the date and year first written above, it is the record and beneficial holder of that principal amount of Senior Secured Nonconvertible Notes due 2011 of AFG Enterprises USA, Inc., a Nevada corporation (the “Company”) set forth next to its name, and as the Holder of such Notes accepts and agrees to the terms of that certain Amendment to Escrow Agreement by and among the Company; The Bank of New York, a New York banking corporation, as Escrow Agent; The Bank of New York, a New York banking corporation, as Collateral Agent under that certain Security Agreement with the Company; and The Bank of New York, a New York banking corporation, as Trustee for the holders of certain notes of the Company under that certain Indenture dated as of March 29, 2006.
SMITHFIELD FIDUCIARY LLC, |
$1,000,000 principal amount |
||
as Nonconvertible Holder |
|
||
|
|
||
|
|
||
By: |
/s/ Xxxxx X. Xxxxxxx |
|
|
Name: Xxxxx X. Xxxxxxx |
|
||
Title: Authorized Signatory |
|
||