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EXHIBIT 4.9
WALBRO CORPORATION
FIRST AMENDMENT
DATED AS OF JULY 26, 1995
RE:
NOTE AGREEMENT DATED AS OF OCTOBER 1, 1994
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. CLOSING CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) Company's and Subsidiaries' Existence and Authority . . . . . . . . . . . . 2
(c) Collateral Agent's Existence and Authority . . . . . . . . . . . . . . . . 2
(d) Security Agreements, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 2
(e) Filing and Recording . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(f) Related Transactions on the Amendment Closing Date . . . . . . . . . . . . 2
(g) Satisfactory Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2. Waiver of Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2. AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.1. Amendment of Section 5.11 . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.2. Amendment of Section 6.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.3. Amendment of Section 8.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.4. Amendment of Annex B to Exhibit C of the Note Agreement . . . . . . . . . . . 4
SECTION 3. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.1. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.2. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.3. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.4. Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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WALBRO CORPORATION
FIRST AMENDMENT
To the Institutions Named on
Schedule I Hereto
Ladies and Gentlemen:
Reference is made to that certain Note Agreement, dated as of October
1, 1994 (the "Note Agreement"), between Walbro Corporation, a Delaware
corporation (the "Company"), and the Purchasers named in Schedule I attached
thereto, under which $45,000,000 aggregate principal amount of 7.68% Senior
Notes due October 1, 2004 of the Company (the "Notes") were originally issued.
The Company hereby certifies that Schedule I hereto contains the names of all
of the Holders of all of the Notes outstanding on the date hereof under the
Note Agreement.
Pursuant to that certain Walbro Corporation $135,000,000 Credit
Agreement dated as of the date hereof (the "Credit Agreement"), among the
Company, certain of its Subsidiaries, each of the banks named on the signature
pages thereof (collectively, the "Banks") and Comerica Bank, a Michigan banking
corporation, as agent for the Banks (the "Agent"), the Banks have agreed,
subject to the satisfaction of certain terms and conditions, to make advances
to the Company and certain of its Subsidiaries and to provide for the issuance
of letters of credit for the account of the Company, individually, or jointly
and severally with certain of its Subsidiaries, as provided therein.
Pursuant to and in accordance with the Credit Agreement and the Note
Agreement, the Banks and each of you have required that the Company and certain
Subsidiaries provide to Comerica Bank, a Michigan banking corporation, as
collateral agent for the Banks and the Holders (the "Collateral Agent"),
various grants of collateral, security interests, liens and other encumbrances
as security for the Company's and certain of its Subsidiaries' obligations
under the Credit Agreement, the Note Agreement, the Notes, the Guaranty
Agreements and certain guaranty agreements issued for the benefit of the Banks,
as evidenced by (i) that certain Company Stock Pledge and Security Agreement
dated as of the date hereof (the "Company Security Agreement") between the
Company and the Collateral Agent, (ii) that certain Guarantor Stock Pledge and
Security Agreement dated as of the date hereof (the "Guarantor Security
Agreement") between the Company and the Domestic Subsidiaries and (iii) those
certain pledge agreements dated on or about the date hereof (the "Foreign
Pledge Agreements") from certain of the Subsidiaries for the benefit of the
Collateral Agent. The Company Security Agreement, the Guarantor Security
Agreement and the Foreign Pledge Agreements are hereinafter collectively
referred to as the "Security Agreements."
Pursuant to that certain Intercreditor Agreement dated as of the date
hereof (the "Intercreditor Agreement") among the Company, the Collateral Agent,
the Agent, the other Banks and each of you, the Banks and each of you have
entered into certain intercreditor arrangements with respect to the
above-described transactions.
Capitalized terms used herein and not otherwise defined shall have the
meanings as defined in the Note Agreement. As used herein, the term "Amendment
Closing Date" shall mean the date on which the Company and the Holders of at
least 66-2/3% in aggregate principal amount of outstanding Notes execute this
First Amendment.
In connection with the above-described transactions, the Company
desires to amend certain provisions of the Note Agreement and, upon the
execution and delivery of this First Amendment by the Company and the Holders
of at least 66-2/3% in aggregate principal amount of outstanding Notes, certain
provisions of the Note Agreement shall be amended as of the date hereof in the
manner described in Section 2 hereof.
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SECTION 1. CLOSING CONDITIONS.
Section 1.1. Conditions. Your execution and delivery of this First
Amendment shall be subject to the performance by the Company of its agreements
hereunder which by the terms hereof are to be performed at or prior to the time
of the execution and delivery of this First Amendment and to the following
further conditions precedent:
(a) Legal Opinions. You shall have received from Katten,
Muchin & Zavis, special counsel for the Company and its Subsidiaries
and from Xxxxxx, Xxxxxxx & Xxxxxxx, counsel for the Collateral Agent,
their respective opinions dated the Amendment Closing Date, in form
and substance satisfactory to you.
(b) Company's and Subsidiaries' Existence and Authority.
On or prior to the Amendment Closing Date, you shall have received, in
form and substance reasonably satisfactory to you and your special
counsel, such documents and evidence with respect to the Company and
the Subsidiaries which are parties to the Company Security Agreement
and the Guarantor Security Agreement as you may reasonably request in
order to establish the existence and good standing of the Company and
such Subsidiaries and the authorization of the transactions
contemplated by this First Amendment, the Company Security Agreement,
the Guarantor Security Agreement and the Intercreditor Agreement.
(c) Collateral Agent's Existence and Authority. On or
prior to the Amendment Closing Date, you shall have received, in form
and substance satisfactory to you and your special counsel, such
documents and evidence with respect to the Collateral Agent as you may
reasonably request in order to establish the existence and good
standing of the Collateral Agent and the authorization of the
transactions contemplated by the Security Agreements and the
Intercreditor Agreement.
(d) Security Agreements, Etc. On or prior to the
Amendment Closing Date, the Company Security Agreement, the Guarantor
Security Agreement and the Intercreditor Agreement in the forms
attached hereto as Exhibits B, C and D, respectively, shall have been
duly executed and delivered by the parties thereto and shall be in
full force and effect and you shall have received true, correct and
complete copies of each thereof.
(e) Filing and Recording. On or prior to the Amendment
Closing Date, the Company Security Agreement and the Guarantor
Security Agreement and/or UCC-1 financing statements or other notices
with respect thereto shall have been executed and shall be in proper
form of recordation or filing in all public offices as may be
necessary or appropriate in order to perfect the liens and security
interests granted or conveyed thereby.
(f) Related Transactions on the Amendment Closing Date.
The Company shall have consummated the transactions contemplated by
the Credit Agreement.
(g) Satisfactory Proceedings. All proceedings taken in
connection with the transactions contemplated by this First Amendment,
and all documents necessary to the consummation thereof, shall be
reasonably satisfactory in form and substance to you and your special
counsel, and you shall have received a copy (executed or certified as
may be appropriate) of all legal documents or proceedings taken in
connection with the consummation of said transactions.
Section 1.2. Waiver of Conditions. If on the Amendment Closing Date,
the conditions specified in Section 1.1 have not been fulfilled, you may
thereupon elect to be relieved of all further obligations under this First
Amendment. Without limiting the foregoing, if the conditions specified in
Section 1.1 have not been fulfilled, you may waive compliance by the Company
with any such condition to such extent as you may in your sole discretion
determine. Nothing in this Section 1.2
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shall operate to relieve the Company of any of its obligations hereunder or to
waive your rights against the Company.
SECTION 2. AMENDMENTS.
Section 2.1. Amendment of Section 5.11. Section 5.11 of the Note
Agreement is hereby amended in its entirety so that the same shall henceforth
read as follows:
"Section 5.11. Guaranties. The Company will not,
and will not permit any Subsidiary to, become or be liable in
respect of any Guaranty except:
(a) Guaranties by the Company which are limited
in amount to a stated maximum dollar exposure or which
constitute Guaranties of obligations incurred by any
Subsidiary in compliance with the provisions of this
Agreement,
(b) Guaranties by any Subsidiary which constitute
Guaranties of obligations incurred by any other Subsidiary
pursuant to the terms of the Credit Agreement and in
compliance with the provisions of this Agreement (including,
but not limited to, Section 5.7(a)(3)), and
(c) Guaranties by one or more Subsidiaries of
Indebtedness of the Company incurred within the limitations of
Section 5.7(a)(3), provided that, as a condition precedent to
entering into any such Guaranty, (i) each such Subsidiary
shall have guaranteed the Notes equally and ratably with such
other Indebtedness of the Company under a form of Guaranty
which has the prior written approval of the Holder or Holders
of the Notes, and (ii) the Holder or Holders of the Notes
shall have received the favorable written opinion of
independent counsel designated by such Holder or Holders to
the effect that such Guaranty of the Notes is the legal, valid
and binding obligations of each such Subsidiary, enforceable
against each such Subsidiary in accordance with its terms."
Section 2.2. Amendment of Section 6.1. Clauses (h) and (i) of
Section 6.1 of the Note Agreement is hereby amended as follows:
"(h) The Company shall fail to observe or perform
any other provision of this Agreement or the Company or any
Subsidiary shall fail to observe or perform any provision of
any Security Agreement or the Intercreditor Agreement, in each
case, which is not remedied within 30 business days after the
earlier of (i) the day on which the Company or such Subsidiary
first obtains knowledge of such default, or (ii) the day on
which written notice thereof is given to the Company or such
Subsidiary by any Holder; or
(i) Any representation or warranty made by the
Company or any Subsidiary herein, in the Intercreditor
Agreement, or any Security Agreement or any statement or
certificate furnished by the Company or any Subsidiary in
connection with the consummation of the issuance and delivery
of the Notes or furnished by the Company or any Subsidiary
pursuant hereto or thereto, is untrue in any material respect
as of the date of the issuance or making thereof; or"
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Section 2.3. Amendment of Section 8.1. Section 8.1 of the Note
Agreement is hereby amended as follows:
(a) The definition of "Credit Agreement" is
hereby deleted in its entirety and the following is inserted
in lieu thereof:
"Credit Agreement" shall mean that certain Walbro
Corporation $135,000,000 Credit Agreement dated as of July 26,
1995 among the Company, certain of its Subsidiaries, Comerica
Bank, as agent and the other banks named on the signature
pages thereof, as the same may be amended, modified or
supplemented from time to time, and any extension, renewal or
replacement thereof."
(b) The following definitions are hereby
incorporated into Section 8.1 in their correct alphabetical
order:
"Intercreditor Agreement" shall mean that certain
Intercreditor Agreement dated as of July 26, 1995 among the
Company, the Holders, the banks named on the signature pages
thereof, Comerica Bank, as agent for such banks and as
collateral agent for such banks and the Holders, as the same
may be amended, modified or supplemented from time to time.
"Security Agreements" shall mean (i) that certain
Company Stock Pledge and Security Agreement dated as of July
26, 1995 between the Company and Comerica Bank, as collateral
agent, (ii) that certain Guarantor Stock Pledge and Security
Agreement dated as of July 26, 1995 between the Domestic
Subsidiaries and Comerica Bank, as collateral agent and (iii)
those certain pledge agreements dated on or about July 26,
1995 from certain of the Subsidiaries for the benefit of
Comerica Bank, as collateral agent, in each case, as the same
may be amended, modified or supplemented from time to time."
Section 2.4. Amendment of Annex B to Exhibit C of the Note Agreement.
Annex B to Exhibit C of the Note Agreement is hereby amended by inserting the
following at the end of paragraph 4 of thereof:
"ESOP Credit Agreement - $1,633,875."
SECTION 3. MISCELLANEOUS.
Section 3.1. Execution in Counterparts. Two or more duplicate
originals of this First Amendment may be signed by the parties hereto, each of
which shall be an original but all of which together shall constitute one and
the same instrument. This First Amendment may be executed in one or more
counterparts and will be effective (as of the effective date set forth below),
when at least one counterpart has been executed by the Company and the Holders
of at least 66-2/3% in aggregate principal amount of outstanding Notes, and
each set of counterparts which, collectively, show execution by each such party
shall constitute one duplicate original.
Section 3.2. Fees and Expenses. All fees and expenses relating to
the subject matter of this First Amendment, including, without limitation, all
fees and expenses of special counsel to the Holders, shall be paid by the
Company.
Section 3.3. Governing Law. This First Amendment shall be governed
by and construed in accordance with Illinois law.
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Section 3.4. Captions. The descriptive headings of the various
Sections or parts of this First Amendment are for convenience only and shall
not affect the meaning or construction of any of the provisions hereof.
If this First Amendment is satisfactory to you, please so indicate by
signing the acceptance at the foot of a counterpart of this First Amendment and
return such counterpart to the Company, and upon receipt by the Company of
counterparts of this First Amendment executed by the Holders of at least
66-2/3% in aggregate principal amount of outstanding Notes, the Note Agreement
shall be amended as set forth above, but all other terms and provisions of the
Note Agreement shall remain unchanged and are in all respects ratified,
confirmed and approved. If and to the extent that any of the terms or
provisions of the Note Agreement, as amended prior to the date hereof, are in
conflict with or are inconsistent with any of the terms or provisions of this
First Amendment, this First Amendment shall govern.
This First Amendment shall be effective as of July 26, 1995.
WALBRO CORPORATION
By:
---------------------------------------
Its Treasurer
Accepted and Agreed to:
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By:
---------------------------------------
Its
By:
---------------------------------------
Its
THE MUTUAL LIFE INSURANCE COMPANY OF
NEW YORK
By:
---------------------------------------
Its
MONY LIFE INSURANCE COMPANY OF AMERICA
By:
---------------------------------------
Its
FINANCIAL HORIZONS LIFE INSURANCE COMPANY
By:
---------------------------------------
Its
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This First Amendment shall be effective as of July _____, 1995.
WALBRO CORPORATION
By:
-------------------------------
Its
Accepted and Agreed to:
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By:
-------------------------------
Its
By:
-------------------------------
Its
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK
By:
-------------------------------
Its
MONY LIFE INSURANCE COMPANY OF
AMERICA
By:
-------------------------------
Its
FINANCIAL HORIZONS LIFE INSURANCE
COMPANY
By:
-------------------------------
Its
NATIONWIDE LIFE INSURANCE COMPANY
By:
-------------------------------
Its
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The undersigned Domestic Subsidiaries hereby (i) consent and agree to
the terms of this First Amendment and (ii) reaffirm that (A) the
representations and warranties of the Domestic Subsidiaries contained in
Exhibit C to the Note Agreement are true and correct as of the date hereof and
(B) the Guaranty Agreements remain in full force and effect.
WALBRO AUTOMOTIVE CORPORATION
By:
--------------------------------------------------
Its
WALBRO ENGINE MANAGEMENT CORPORATION
By:
--------------------------------------------------
Its
XXXXXX MANUFACTURING COMPANY
By:
--------------------------------------------------
Its
XXXXXXXXX ENGINEERED PRODUCTS
By:
--------------------------------------------------
Its
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SCHEDULE I
PRINCIPAL AMOUNT
NAME OF OF NOTES HELD
REGISTERED HOLDER BY SUCH HOLDER
Principal Mutual Life Insurance Company $20,000,000
The Mutual Life Insurance Company of New York $9,000,000
MONY Life Insurance Company of America $6,000,000
Financial Horizons Life Insurance Company $2,000,000
Nationwide Life Insurance Company $8,000,000
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EXHIBIT A
REPRESENTATIONS AND WARRANTIES
A. The Company and each Subsidiary which is a party to any
Security Agreement represents and warrants to each Holder as follows:
1. Representations Contained in the Note Agreement. The
representations and warranties contained in paragraphs 2 through 4 and
paragraphs 6 through 19 of Exhibit C to the Note Agreement and contained in the
Credit Agreement are, after giving effect to the First Amendment and the
transactions contemplated thereby, true and correct on and as of the date
hereof.
2. Company Documents. The execution and delivery of the
First Amendment, the Security Agreement to which the Company is a party and the
Intercreditor Agreement and compliance by the Company with all of the
provisions thereof -
(a) are within the corporate powers of the
Company;
(b) will not violate any provisions of any law or
any order of any court or governmental authority or agency and
will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default
under the Certificate of Incorporation or By-laws of the
Company or any indenture or other agreement or instrument to
which the Company is a party or by which it may be bound or
result in the imposition of any Liens or encumbrances on any
property of the Company (other than as expressly provided
therein); and
(c) have been duly authorized by proper corporate
action on the part of the Company (no action by the
stockholders of the Company being required by law, by the
Certificate of Incorporation or By-laws of the Company or
otherwise), executed and delivered by the Company and the
First Amendment, the Security Agreement to which the Company
is a party and the Intercreditor Agreement constitute the
legal, valid and binding obligations, contracts and agreements
of the Company enforceable in accordance with their respective
terms.
3. Subsidiary Documents. (a) The execution of each
Security Agreement by the Subsidiary which is or, with respect to the Foreign
Pledge Agreements, will be a party thereto and compliance by such Subsidiary
with all of the provisions of such Security Agreement -
(i) are within the corporate powers of such
Subsidiary;
(ii) will not violate any provisions of any law or
any order of any court or governmental authority or agency and
will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default
under the Articles of Incorporation or By-laws of such
Subsidiary or any indenture or other agreement or instrument
to which such Subsidiary is a party or by which it may be
bound or result in the imposition of any Liens or encumbrances
on any property of such Subsidiary (other than as expressly
provided therein); and
(iii) has been or, with respect to the Foreign
Pledge Agreements, will be duly authorized by proper corporate
action on the part of such Subsidiary (no action by the
stockholders of such Subsidiary being required by law, by the
Articles of Incorporation or By-laws of such Subsidiary or
otherwise), and such Security Agreement has been or, with
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respect to the Foreign Pledge Agreements, will constitute the
legal, valid and binding obligation, contract and agreement of
such Subsidiary enforceable in accordance with its terms.
4. Governmental Consent. No approval, consent or
withholding of objection on the part of any regulatory body, state, Federal or
local, is necessary in connection with (i) the execution and delivery by the
Company of the First Amendment, the Intercreditor Agreement or the Security
Agreement to which it is a party or compliance by the Company with any of the
provisions thereof or (ii) the execution and delivery by each Subsidiary of the
Security Agreement to which it is a party or compliance by such Subsidiary with
any of the provisions of such Security Agreement.
5. Compliance with Law. Neither the Company nor any
Subsidiary (a) is in violation of any law, ordinance, franchise, governmental
rule or regulation to which it is subject; or (b) has failed to obtain any
license, permit, franchise or other governmental authorization necessary to the
ownership of its property or to the conduct of its business, which violation or
failure to obtain would materially adversely affect the business, prospects,
profits, properties or condition (financial or otherwise) of the Company and
its Subsidiaries, taken as a whole, impair the ability of the Company to
perform its obligations contained in the First Amendment, the Security
Agreement to which the Company is a party or the Intercreditor Agreement or
impair the ability of any Subsidiary to perform its obligations under the
Security Agreement to which it is or, with respect to the Foreign Pledge
Agreements, will be a party.
6. Perfection of Security Interest. On and as of the
Amendment Closing Date, the Security Agreements and financing statements or
other notices with respect thereto have been executed and shall be in proper
form for filing or recordation in all the public offices wherein such filing or
recordation is necessary to perfect the liens and security interests of the
Collateral Agent in the property described therein (to the extent such liens
and security interests can be perfected by recordation or filing) as against
creditors of and purchasers from the Company and each Subsidiary which is a
party thereto, and the Security Agreements have created or, with respect to the
Foreign Pledge Agreements, will create valid and, upon such recordations and
filings and, with respect to the Pledged Domestic Shares and Pledged Foreign
Shares (as such terms are defined in the Security Agreements), possession of
such Pledge Domestic Shares and Pledged Foreign Shares by the Collateral Agent,
perfected priority liens on and security interests in, the right, title and
interest of the Company and each Subsidiary which is a party thereto in and to
the property described therein, effective as against creditors of and
purchasers from the Company and each Subsidiary which is or, with respect to
the Foreign Pledge Agreements, will be a party thereto.
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