EXHIBIT 4.8
[EXECUTION COPY]
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AMENDMENT
to
RESTRUCTURING AGREEMENT
between
XXXXX X. XXXXXXXXX HOLDING COMPANY, INC.
and
XXXXX
INVESTMENT ASSOCIATES IV, L.P.
_______________________________
Dated as of March 24, 1998
_______________________________
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TABLE OF CONTENTS
Section Page
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1. Prepayment of Principal and Interest of the Series A Notes, Cancellation of
the Series A Notes and Issuance of the Notes....................................... 2
1.1. Prepayment of Principal and Interest of the Series A Notes.................. 2
1.2. Cancellation of the Series A Notes and Issuance of the Notes................ 2
1.3. Closing..................................................................... 2
2. Conditions to Closing.............................................................. 3
2.1. Representations and Warranties.............................................. 3
2.2. Performance; No Default..................................................... 3
2.3. Compliance Certificate...................................................... 3
2.4. Absence of Litigation....................................................... 3
2.5. Indenture, Special Term Loan Agreement and Amended and Restated
Credit Agreement............................................................ 3
2.6. Proceedings................................................................. 3
3. Representations and Warranties of Holding.......................................... 3
3.1. Organization, Standing, Etc................................................. 3
3.2. Qualification............................................................... 4
3.3. Authorization............................................................... 4
3.4. No Violation; Conflicts..................................................... 4
3.5. Governmental Consent........................................................ 4
3.6. Compliance with Margin Regulations.......................................... 4
4. Terms of Notes, Etc................................................................ 4
4.1. Terms of Notes.............................................................. 4
5. Amendments to the Business and Financial Covenants................................. 5
5.1. Corporate Existence, Etc.; Business......................................... 5
5.2. Indebtedness................................................................ 5
5.3. Limitation on Restrictions on Distributions from Subsidiaries............... 6
5.4. Liens....................................................................... 6
5.5. Asset Dispositions.......................................................... 7
5.6. Transactions with Affiliates................................................ 7
5.7. Restriction on Fundamental Changes.......................................... 7
5.8. Payment of Dividends........................................................ 8
5.9. Indenture, Special Term Loan Agreement and Amended and Restated
Credit Agreement............................................................ 8
5.10. Events of Default........................................................... 8
(i)
6. Definitions........................................................................ 9
7. Survival of Representations and Warranties......................................... 9
8. Parties............................................................................ 9
9. Notices, Etc....................................................................... 10
10. Further Assurances................................................................. 10
11. Miscellaneous...................................................................... 10
12. Savings Clause..................................................................... 10
13. Severability....................................................................... 10
(ii)
EXHIBITS
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Exhibit A Form of Holding Note No. R-12
Exhibit B Form of Holding Note No. R-13
(iii)
AMENDMENT TO RESTRUCTURING AGREEMENT
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THIS AMENDMENT TO RESTRUCTURING AGREEMENT (this "Amendment") is made and
entered into as of March 24, 1998, by and between Xxxxx X. Xxxxxxxxx Holding
Company, Inc., a Delaware corporation ("Holding"), and Xxxxx Investment
Associates IV, L.P., a Delaware limited partnership ("KIA IV").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Holding is the sole stockholder of Xxxxx X. Xxxxxxxxx Company, a
Delaware corporation (the "Company");
WHEREAS, pursuant to that certain Restructuring Agreement dated as of March
3, 1993 (the "Restructuring Agreement") between Holding and KIA IV, KIA IV
agreed to acquire from Holding, and Holding agreed to issue to KIA IV,
$55,000,000 in aggregate principal amount of Series A Variable Rate Senior Notes
(the "Series A Notes") and certain warrants for the purchase of shares of common
stock of Holding;
WHEREAS, pursuant to that certain Indenture dated as of March 24, 1998 (the
"Indenture") between the Company and the United States Trust Company of New
York, and as set forth in that certain Offering Memorandum of the Company dated
March 19, 1998 (the "Offering"), the Company shall issue $105,000,000 in
aggregate principal amount of 9.5% Senior Notes due 2005 (the "Senior Notes");
WHEREAS, concurrent with the closing of the Offering, the Company shall (i)
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enter into the Special Term Loan Agreement (as hereinafter defined) pursuant to
which the Company shall borrow $100,000,000, and (ii) enter into the Amended and
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Restated Credit Agreement (as hereinafter defined) pursuant to which the Company
shall refinance its existing credit facility providing up to $220,000,000 in
revolving credit and letter of credit availability;
WHEREAS, the Company shall use a portion of the net proceeds of the
Offering, and borrowings under the Special Term Loan Agreement and the Amended
and Restated Credit Agreement, to pay a dividend to Holding in the amount of
$45,419,439.60, thereby enabling Holding (i) to make a prepayment of $40,000,000
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in principal amount of the Series A Notes (which principal amount constitutes
interest paid in kind on the Series A Notes), and (ii) to make a payment of
--
approximately $5,419,439.60 for unpaid interest accrued from January 1, 1998 to
the Closing Date (as hereinafter defined) on the Series A Notes;
WHEREAS, concurrent with Holding's redemption of such Series A Notes and
its payment of such accrued and unpaid interest, Holding and KIA IV have agreed
to extend the maturity of the remaining Series A Notes to March 20, 2006 and to
make such other incidental amendments to the Restructuring Agreement as shall be
necessary for the Company to comply with the terms
of the Indenture, the Special Term Loan Agreement and the Amended and Restated
Credit Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties made herein and of the mutual benefits to be
derived herefrom, the parties hereto agree as follows:
1. Prepayment of Principal and Interest of the Series A Notes,
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Cancellation of the Series A Notes and Issuance of the Notes.
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1.1. Prepayment of Principal and Interest of the Series A Notes.
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Subject to the terms and conditions hereof, at the Closing (as hereinafter
defined), Holding shall pay to KIA IV the aggregate sum of Forty-Five Million
Four Hundred Nineteen Thousand Four Hundred Thirty-Nine Dollars and 60/100
($45,419,439.60) (the "Prepayment Amount") in immediately available funds, by
wire transfer as specified by KIA IV, which Prepayment Amount shall be applied
as follows:
(a) Forty Million Dollars ($40,000,000) shall be applied to
prepay, in part, the principal amount of the Series A Notes issued as
interest paid in kind on the Series A Notes; and
(b) Five Million Four Hundred Nineteen Thousand Four Hundred
Thirty-Nine Dollars and 60/100 ($5,419,439.60) shall be applied to pay for
unpaid interest accrued from January 1, 1998 to the Closing Date on the
Series A Notes.
1.2. Cancellation of the Series A Notes and Issuance of the Notes.
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Subject to the terms and conditions hereof, at the Closing:
(a) KIA IV shall deliver to Holding all of the then outstanding Series
A Notes, free and clear of any Lien, and Holding shall cancel all such
Series A Notes;
(b) Holding shall issue and deliver to KIA IV $55,000,000 in aggregate
principal amount of its Series A Notes, substantially in the form of the
note attached hereto as Exhibit A ("Holding Note No. R-12"), dated as of
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the Closing Date and registered in the name of KIA IV (or in the name of
its nominee); and
(c) Holding shall issue and deliver to KIA IV $37,181,453.70 in
aggregate principal amount of its Series A Notes, substantially in the form
of the note attached hereto as Exhibit B ("Holding Note No. R-13"), dated
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as of the Closing Date and registered in the name of KIA IV (or in the name
of its nominee). (Holding Note No. R-12 and Holding Note No. R-13,
together with any Secondary Notes (as defined), shall hereinafter be
referred to as the "Notes").
1.3. Closing. The closing of the transactions described in Section 1
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(the "Closing") shall take place at the offices of Xxxxx & Company, 000 Xxxx
Xxxxxx, 00xx Xxxxx,
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Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., Eastern Standard Time, on March 24,
1998 or at such other place, time or date as may be mutually agreed upon by the
parties hereto (the "Closing Date").
2. Conditions to Closing. The obligation of KIA IV to consummate the
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transactions contemplated hereby is subject to the fulfillment to its
satisfaction, prior to or at the Closing, of the following conditions:
2.1. Representations and Warranties. The representations and
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warranties of Holding contained in this Amendment and those otherwise made in
writing by or on behalf of Holding in connection with the transactions
contemplated by this Amendment shall be correct on and as of the date hereof and
shall be repeated and shall be true and correct on and as of the Closing Date
with the same effect as though made on and as of such date.
2.2. Performance; No Default. Holding shall have performed and
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complied with all agreements and conditions contained in this Amendment required
to be performed or complied with by it prior to or at the Closing and at the
time of the Closing no Default shall have occurred and be continuing.
2.3. Compliance Certificate. Holding shall have delivered to KIA IV
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an Officers' Certificate, dated as of the Closing Date, certifying that the
conditions specified in Sections 2.1 and 2.2 have been fulfilled.
2.4. Absence of Litigation. No litigation or proceeding shall exist
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with respect to the Indenture, the Special Term Loan Agreement, the Amended and
Restated Credit Agreement or this Amendment or any other agreements, documents
or transactions related thereto or hereto, which would in the opinion of KIA IV
be reasonably likely to have a material adverse effect on the ability of Holding
to perform its obligations under this Amendment or the Notes or on the validity
or enforceability of this Amendment or the Notes.
2.5. Indenture, Special Term Loan Agreement and Amended and Restated
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Credit Agreement. KIA IV shall be reasonably satisfied with the terms of the
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Indenture, the Special Term Loan Agreement and the Amended and Restated Credit
Agreement. The Indenture, the Special Term Loan Agreement and the Amended and
Restated Credit Agreement shall have been duly executed and delivered by all
parties thereto and there shall not exist any default or event of default
thereunder and all the conditions to lending contained in the Special Term Loan
Agreement and the Amended and Restated Credit Agreement shall have been
satisfied.
2.6. Proceedings. All corporate and other proceedings taken or to be
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taken in connection with the transactions contemplated hereby and all documents
incident thereto shall be satisfactory in form and substance to KIA IV and its
counsel, and KIA IV shall have received such other documents relating thereto as
KIA IV may reasonably request.
3. Representations and Warranties of Holding. Holding represents and
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warrants to KIA IV as follows:
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3.1. Organization, Standing, Etc. Holding is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own and operate
its properties and to carry on its business as now conducted and as proposed to
be conducted.
3.2. Qualification. Holding is duly qualified and in good standing as
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a foreign corporation authorized to do business in each jurisdiction (other than
the jurisdiction of its incorporation) in which the nature of its activities or
the character of the properties it owns or leases makes such qualification
necessary.
3.3. Authorization. Holding has the corporate power and authority and
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the legal right to make, deliver and perform its obligations under this
Amendment and the Notes and has taken all necessary corporate action to
authorize the transactions contemplated hereby and thereby. This Amendment has
been, and on or prior to the Closing Date the Notes shall have been, duly
authorized, executed and delivered by Holding. This Amendment constitutes, and
when executed and delivered the Notes shall constitute, legal, valid and binding
obligations of Holding, enforceable against Holding in accordance with their
respective terms.
3.4. No Violation; Conflicts. The execution and delivery of this
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Amendment and the Notes and the performance by Holding of their respective terms
will not (a) violate any law or regulation or any order or decree of any court
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or governmental instrumentality applicable to Holding or any of the
Subsidiaries; (b) conflict with or constitute a material default under, or give
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rise to any right of termination or acceleration under, any material indenture,
mortgage, deed of trust or loan agreement, or any other material agreement,
lease or other instrument, to which Holding or any of the Subsidiaries is a
party or by which any of their property or assets are bound or to which they may
be subject; or (c) violate any provision of the Certificate of Incorporation or
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By-Laws of Holding or any of the Subsidiaries.
3.5. Governmental Consent. No consent, approval or authorization of,
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or declaration or filing with, any Governmental Authority on the part of Holding
or any of the Subsidiaries is required for the valid execution and delivery of
this Amendment, the Notes, the valid offer and issuance of the Notes pursuant to
this Amendment or the consummation of the transactions contemplated by this
Amendment or the Notes.
3.6. Compliance with Margin Regulations. The issuance of the Notes
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hereunder and the consummation of the transactions contemplated hereby will not
violate or be inconsistent with Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of
Governors.
4. Terms of Notes, Etc.
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4.1. Terms of Notes. The terms of the Notes, including the payments
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required upon the maturity thereof, the interest rates applicable thereon, and
mandatory and optional pre payments with respect thereto, are contained in the
form of such Notes set forth in Exhibit A and Exhibit B, respectively.
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5. Amendments to the Business and Financial Covenants. The Business and
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Financial Covenants of Holding contained in Section 10 of the Restructuring
Agreement are amended as follows:
5.1. Corporate Existence, Etc.; Business. Section 10.1 of the
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Restructuring Agreement is deleted in its entirety and the following is inserted
in lieu thereof:
10.1 Corporate Existence, Etc.; Business. Holding will at all times
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preserve and keep in full force and effect its corporate existence and
rights and franchises deemed material to its business, and those of each of
the Subsidiaries, except as otherwise specifically permitted by Section 5.7
(Restriction on Fundamental Changes), Section 1003 of the Indenture
(Corporate Existence), Section 7.1.2 of the Special Term Loan Agreement
(Corporate Existence) and Section 7.3 of the Amended and Restated Credit
Agreement (Corporate Franchises). Holding will not, and will not permit
any of the Subsidiaries to, engage in any lines of business other than the
businesses in which they are currently engaged and any line of business
reasonably related thereto.
5.2. Indebtedness. Section 10.2 of the Restructuring Agreement is
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deleted in its entirety and the following is inserted in lieu thereof:
10.2 Indebtedness. Holding will not, and will not permit any of the
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Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
or otherwise become or remain liable with respect to any Indebtedness,
except:
(a) Indebtedness of any of the Subsidiaries under the Special Term Loan
Agreement and the Amended and Restated Credit Agreement;
(b) Indebtedness of the Company represented by the Senior Notes;
(c) Other Indebtedness of any of the Subsidiaries to the extent permitted
under the Indenture, the Special Term Loan Agreement and the Amended and
Restated Credit Agreement;
(d) Indebtedness of Holding under Article 12 of the Amended and Restated
Credit Agreement (Guaranty);
(e) Indebtedness represented by the Notes; and
(f) Indebtedness evidenced by promissory notes issued by Holding to pay
the purchase price of shares of Capital Stock of Holding held by any
employee or former employee stockholders in accordance with the terms of
the ESOP or the Stockholders Agreement to the extent such payments are
permitted under Section 10.3 of the Restructuring Agreement.
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5.3. Limitation on Restrictions on Distributions from Subsidiaries.
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Section 10.4 of the Restructuring Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
10.4 Limitation on Restrictions on Distributions from Subsidiaries.
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Holding will not permit any Subsidiary to create or otherwise cause or
permit to exist or become effective any consensual encumbrance or
restriction which by its terms encumbers or restricts the ability of any
Subsidiary to (a) pay dividends or make any other distributions on its
-
Capital Stock or pay any Indebtedness or other obligation owed to Holding
or any other Subsidiary, (b) make any loans or ad vances to Holding or (c)
- -
transfer any of its property or assets to Holding, except any such
encumbrance or restriction:
(i) in the case of any Subsidiary (other than the Company), to the extent
permitted under the terms of Section 1014 of the Indenture (Limitation on
Restricted Subsidiary Dividends), Section 7.2.4 of the Special Term Loan
Agreement (Payment Restrictions Affecting Restricted Subsidiaries) and
Section 8.14 of the Amended and Restated Credit Agreement (Limitations on
Restrictions Affecting Subsidiaries) and as set forth in Section 8.6 of the
Amended and Restated Credit Agreement (Dividends, etc.);
(ii) in the case of the Company, the restrictions set forth in Section
1009 of the Indenture (Limitation on Restricted Payments), Section 1015 of
the Indenture (Limitation on Transactions with Affiliates), as explicitly
set forth in Section 7.2 of the Special Term Loan Agreement and as
explicitly set forth in Article 8 of the Amended and Restated Credit
Agreement; and
(iii) existing under or by reason of Applicable Law.
5.4. Liens. Section 10.5 of the Restructuring Agreement is deleted
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in its entirety and the following is inserted in lieu thereof:
10.5 Liens. Holding will not, and will not permit any of the Subsidiaries
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to, directly or indirectly, create, incur, assume or permit to exist any
Lien on or with respect to any property or asset (including any document or
instrument in respect of goods and accounts receivable) of Holding or any
of the Subsidiaries, whether now owned or hereafter acquired, or any income
or profits therefrom or rights in respect thereof, except:
(a) in the case of any Subsidiary, to the extent permitted under the
terms of Section 1011 of the Indenture (Limitation on Liens), Section 7.2.2
of the Special Term Loan Agreement (Liens) and Section 8.2 of the Amended
and Restated Credit Agreement (Liens, etc.); and
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(b) in the case of Holding, any Lien for Taxes, the payment of which is
not at the time required by Section 10.6 (Payment of Taxes) of the
Restructuring Agreement.
5.5. Asset Dispositions. Section 10.7 of the Restructuring Agreement
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is deleted in its entirety and the following is inserted in lieu thereof:
10.7 Asset Dispositions. Holding will not, and will not permit any of the
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Subsidiaries to, sell, transfer, lease, convey or otherwise dispose of any
assets, except as otherwise permitted under this Amendment and, in the case
of any Sub sidiary, as permitted under the terms of the Indenture, the
Special Term Loan Agreement or the Amended and Restated Credit Agreement.
5.6. Transactions with Affiliates. Section 10.8 of the Restructuring
----------------------------
Agreement is deleted in its entirety and the following is inserted in lieu
thereof:
10.8 Transactions with Affiliates. Holding will not, and will not permit
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any of the Subsidiaries to, directly or indirectly, enter into any
transaction (including the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate of Holding or
any of the Subsidiaries, unless (a) such transaction is not otherwise
-
prohibited by this Amendment, (b) such transaction is in the ordinary
-
course of business and (c) the Board of Directors of Holding determines
-
that such transaction is on fair and reasonable terms no less favorable to
Holding or any Subsidiary, as the case may be, than those terms which might
be obtained at the time in a comparable arm's-length transaction with a
Person who is not an Affiliate or, if such transaction is not one which by
its nature could be obtained from such other Person, is on fair and
reasonable terms and was negotiated in good faith on an arm's-length basis,
provided that this Section 10.8 shall not restrict (i) Restricted Payments
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permitted by Sections 10.3(a) and 10.3(c), (ii) payments pursuant to the
--
terms of any Contractual Obligations in effect on the Closing Date (which
Contractual Obligations shall not be subsequently amended without the prior
written consent of KIA IV); or (iii) in the case of any Subsidiary, the
---
transactions and payment of the fees and expenses permitted or required to
be paid under this Amendment, the Indenture, the Special Term Loan
Agreement and the Amended and Restated Credit Agreement.
5.7. Restriction on Fundamental Changes. Section 10.10 of the
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Restructuring Agreement is deleted in its entirety and the following is inserted
in lieu thereof:
10.10 Restriction on Fundamental Changes. Holding will not, and will not
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permit any of the Subsidiaries to, enter into any merger, consolidation,
reorgani zation or recapitalization, reclassify its Capital Stock,
liquidate, wind up or dissolve or sell, lease, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or
substantially all of its or their business or assets, whether now owned or
hereafter acquired, except, in the case of any Subsidiary,
7
as specifically permitted under the Indenture, the Special Term Loan
Agreement and the Amended and Restated Credit Agreement and so long as no
Default or Event of Default shall exist after giving effect to such merger,
consolidation or sale.
5.8. Payment of Dividends. Section 10.11 of the Restructuring
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Agreement is deleted in its entirety and the following is inserted in lieu
thereof:
10.11 Payment of Dividends. Holding will cause the Company and each
--------------------
other Subsidiary to declare, make and pay dividends or other distributions
on account of their respective Capital Stock in the maximum amount
permitted under the Indenture, the Special Term Loan Agreement and the
Amended and Restated Credit Agreement, provided that any such dividend is
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not violation of the corporation law of the jurisdictions in which the
Company and each such other Subsidiary were organized; and provided,
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further, that in the case of any foreign Subsidiary, Holding may elect not
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to cause such foreign Subsidiary to pay a dividend if, in the good faith
judgment of Holding and such foreign Subsidiary, the payment of such
dividend would have adverse tax consequences to the Company and each other
Subsidiary, taken as a whole.
5.9. Indenture, Special Term Loan Agreement and Amended and Restated
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Credit Agreement. Section 10.12 of the Restructuring Agreement is deleted in
----------------
its entirety and the following is inserted in lieu thereof:
10.12 Indenture, Special Term Loan Agreement and Amended and Restated
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Credit Agreement. Without the prior written consent of KIA IV, Holding
----------------
will not, and will not permit the Company to, amend, restate, supplement or
otherwise modify the terms and provisions of the Indenture, the Special
Term Loan Agreement or the Amended and Restated Credit Agreement in effect
as of the Closing Date, including, without limitation, the terms and
provisions of Sections 1009 and 1015 of the Indenture, Sections 7.2.3 and
7.2.8 of the Special Term Loan Agreement and Sections 8.6 and 8.7 of the
Amended and Restated Credit Agreement (Dividends, etc.; and Transactions
with Affiliates), whether in connection with a restructuring or refinancing
of the indebtedness of the Company thereunder or otherwise, so as to
further restrict the ability of the Company or any other Subsidiary to
declare, make or pay dividends or other distributions on their respective
Capital Stock.
5.10. Events of Default. Section 11.1(k) of the Restructuring
-----------------
Agreement is deleted in its entirety and the following is inserted in lieu
thereof:
(k) any default shall have occurred under the Indenture, the Special Term
Loan Agreement or the Amended and Restated Credit Agreement and such
default shall continue for more than the grace period, if any, specified
therein and shall not have been waived pursuant thereto.
8
6. Definitions. The definitions contained in Section 12 of the
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Restructuring Agreement are supplemented and amended as follows:
"AMENDED AND RESTATED CREDIT AGREEMENT" refers to The Amended and Restated
Credit Agreement, dated as of March 3, 1993, and amended and restated as of
March 24, 1998, among Holding, the Company, various financial institutions
specified therein, and BT Commercial Corporation, as agent, and all security
agreements and ancillary agreements referred to therein, in each case as such
agreements may be amended, restated, supplemented or otherwise modified from
time to time, including any amendment extending the maturity of or effecting a
refinancing or restructuring of the indebtedness of the Company thereunder.
"AMENDMENT" refers to this Amendment to Restructuring Agreement, together
with all exhibits hereto, as amended from time to time.
"INDENTURE" refers to the Indenture, dated as of March 24, 1998, between
the Company and the United States Trust Company of New York, as specified in the
third recital to this Amendment.
"NOTES" refers to Holding Note No. R-12, Holding Note No. R-13 and the
Secondary Notes, as specified in Section 1.2(c).
"SPECIAL TERM LOAN AGREEMENT" refers to the Term Loan Agreement, dated as
of Xxxxx 00, 0000, xxxxx xxx Xxxxxxx, XXX Capital Funding, Inc., as syndication
agent, and Fleet National Bank, as administrative agent, and the lenders party
thereto, and all security agreements and ancillary agreements referred to
therein, in each case as such agreements may be amended, restated, supplemented
or otherwise modified from time to time.
7. Survival of Representations and Warranties. All representations and
------------------------------------------
warranties contained in this Amendment or made in writing by or on behalf of
Holding in connection with the transactions contemplated by this Amendment shall
survive the execution and delivery of this Amendment, any investigation at any
time made by KIA IV or on KIA IV's behalf, the issuance of the Notes to KIA IV
under this Amendment and any disposition or payment of the Notes. All
statements contained in any certificate or other instrument delivered by or on
behalf of Holding pursuant to this Amendment or in connection with the
transactions contemplated by this Amendment shall be deemed representations and
warranties of Holding under this Amendment.
8. Parties. This Amendment shall inure to the benefit of and be binding
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upon the parties hereto, each subsequent holder of a Note and each of their
respective successors and assigns. Nothing expressed or mentioned in this
Amendment is intended or shall be construed to give any Person, other than the
parties hereto, each subsequent holder of a Note and their re spective
successors and assigns, any legal or equitable right, remedy or claim under or
in respect of this Amendment or any provisions herein contained. This Amendment
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto, any
9
subsequent holder of a Note and each of their respective successors and assigns,
and for the benefit of no other Person.
9. Notices, Etc. Except as otherwise provided in this Amendment and the
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Restructuring Agreement, notices and other communications under this Amendment
and the Restructuring Agreement shall be in writing and shall be delivered by
hand, or mailed certified or registered mail with postage prepaid, or faxed,
addressed, (a) if to Holding, c/o Xxxxx X. Xxxxxxxxx Company, 0000 Xxxx Xxxxx
-
Xxxxxx, Xxxx, Xxxxxxxxxx 00000, fax number: (000) 000-0000 to the attention of
Xx. Xxxxxxx X. Xxxxxxx, Vice President and Chief Financial Officer, or at such
other address or to the attention of such other officer as Holding shall have
furnished to KIA IV in writing or (b) if to KIA IV, c/o Kelso & Company, Inc.,
-
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax number: (212) 223-
2379 to the attention of Xx. Xxxxxxxx with a copy to Xxxxxxx X. Xxxx, Esq.,
Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax number:
(000) 000-0000 or at such other address, or to the attention of such other
officer, as KIA IV shall have furnished to Holding in writing or (c) if to any
-
other holder of any Note, at such address or such fax number as such other
holder shall have furnished to Holding in writing, or, until any such other
holder so furnishes to Holding an address or fax number, then to and at the
address of the last holder of such Note who has furnished an address to Holding.
Any notice so addressed shall be deemed to be given three Business Days after
being mailed by certified or registered mail or on the next Business Day after
being faxed.
10. Further Assurances. At any time or from time to time upon the request
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of KIA IV, Holding shall execute and deliver, and shall cause the Subsidiaries
to execute and deliver, such further documents and do such other acts as KIA IV
may reasonably request in order to effect fully the purpose of this Amendment
and the Notes and to provide for payment with respect to the Notes in accordance
with the terms of this Amendment and the Notes.
11. Miscellaneous. This Amendment shall be binding upon and inure to the
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benefit of and be enforceable by the respective successors and assigns of the
parties hereto, whether so expressed or not, and, in particular, shall inure to
the benefit of and be enforceable by any holder or holders at the time of the
Notes or any part thereof. This Amendment and the Notes shall be construed and
enforced in accordance with and governed by the law of the State of New York
without regard to the conflicts of law rules of such state. The headings in
this Amendment are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof. Except as otherwise indicated, references
to any "Section" mean a "Section" of this Amendment. This Amendment may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
12. Savings Clause. Except as amended herein, each provision of the
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Restructuring Agreement and the Stock Pledge Agreement and the Warrants shall
continue valid, binding and in full force and effect and the Notes shall be
entitled to the full benefit and protection of the Stock Pledge Agreement.
13. Severability. If any provision of this Amendment shall be held
------------
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Amendment
10
shall remain in full force and effect. Any provisions of this Amendment held
invalid or unenforceable only in part or degree shall remain in full force and
effect to the extent not held invalid or unenforceable.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed as of the date first above written.
XXXXX X. XXXXXXXXX HOLDING COMPANY, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Vice President and Chief Financial Officer
XXXXX INVESTMENT ASSOCIATES IV, L.P.,
a Delaware limited partnership
By: Xxxxx Partners IV, L.P., a Delaware limited
partnership
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------------
Its: General Partner
11
Exhibit A
---------
Form of Holding Note No. R-12
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). ANY SALE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION
OF THIS NOTE (OTHER THAN TO THE ISSUER HEREOF) MAY BE MADE ONLY IN COMPLIANCE
WITH THE TERMS OF THE RESTRUCTURING AGREEMENT, DATED AS OF MARCH 3, 1993, AND
AMENDED AS OF MARCH 24, 1998, REFERRED TO BELOW AND ONLY IF MADE EITHER (A)
-
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (B)
-
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
No. R-12 New York, N.Y.
$55,000,000 March 24, 1998
Xxxxx X. Xxxxxxxxx Holding Company, Inc.
SERIES A VARIABLE RATE
SENIOR NOTE
FOR VALUE RECEIVED, the undersigned, Xxxxx X. Xxxxxxxxx Holding
Company, Inc., a Delaware corporation ("Holding"), promises to pay to Xxxxx
Investment Associates IV, L.P., a Delaware limited partnership, or registered
assigns (the "Holder"), the principal sum of $55,000,000 on March 20, 2006 or
such earlier date as the principal may become due and payable pursuant to the
terms hereof (whether at stated maturity or at a date fixed for prepayment or
upon acceleration or otherwise), with interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) accruing from the date
hereof at a rate per annum reset on January 1 and July 1 of each year (each an
"Interest Payment Date"), equal to the greater of (a) 18% and (b) the lesser of
- -
(i) the prime rate (as publicly announced by Xxxxxx Guaranty Trust Company of
-
New York in New York City as its prime rate) as of the immediately preceding
Interest Payment Date, plus 8% and (ii) 20% (together with interest on any
--
overdue principal, including any overdue prepayment of principal, at the rate
described below) on the unpaid balance of such principal amount, payable in
arrears semiannually on each Interest Payment Date, commencing July 1, 1998.
Notwithstanding the foregoing, if and to the extent that on any Interest
Payment Date the aggregate interest payments due under the Notes (as defined
below) then outstanding exceeds the Excess Cash Flow (as defined below) of
Holding for the preceding six-month period, Holding shall apply all such Excess
Cash Flow to the payment of interest due under the Notes and, in lieu of payment
in cash of such excess interest, issue an additional note (a "Secondary Note")
in an aggregate principal amount equal to the amount of such excess interest,
and interest shall accrue thereon from the date of issuance. Each of the other
terms of such Secondary Note shall be identical to the terms of this Note. Each
issuance of Secondary Notes in lieu of payment of interest in cash shall be made
pro rata with respect to all of the Notes then outstanding.
--- ----
Holding shall pay interest on any amount of principal which is not paid
when due, whether at stated maturity or at a date fixed for prepayment or upon
acceleration or otherwise, from the date on which such amount is due until such
amount is paid in full, at the rate borne
by this Note plus 2% per annum, and it shall pay interest on overdue
installments of interest at the same rate, to the extent lawful, on demand.
This Note is one of Holding's Series A Variable Rate Senior Notes (the
"Notes") originally issued in an aggregate principal amount of $55,000,000
pursuant to a Restructuring Agreement, dated as of March 3, 1993, and amended as
of March 24, 1998, between Holding and Xxxxx Investment Associates IV, L.P., as
from time to time amended (the "Agreement"). The holder of this Note is
entitled to the benefits of the Agreement. In addition, the holder of this Note
is entitled to the following benefits:
Mandatory Prepayment
--------------------
Holding shall apply all of the Net Cash Proceeds (as defined below) from
any Capital Markets Transaction (as defined below) to prepay the principal
amount of the Notes (in whole or in part, pro rata, in relation to the aggregate
--- ----
outstanding principal amount of all of the Notes), on the date on which such Net
Cash Proceeds are received by Holding (the "Mandatory Prepayment Date"). In
addition, Holding is obligated to pay on the Mandatory Prepayment Date interest
accrued on the principal amount of the Notes being so prepaid to the date so
paid.
In addition, if upon any Interest Payment Date, the Excess Cash Flow of
Holding for the preceding six-month period exceeds the unpaid and accrued
interest on the Notes as of such Interest Payment Date, then upon such Interest
Payment Date, Holding shall apply such excess first to prepay the principal
amount of any Secondary Notes then outstanding (in whole or in part, pro rata,
--- ----
in relation to the aggregate outstanding principal amount of all of such
Secondary Notes) and, then, after all such Secondary Notes have been prepaid in
full, to prepay the principal amount of all other Notes then outstanding (in
whole or in part, pro rata, in relation to the aggregate outstanding principal
--- ----
amount of all such Notes), in any case, together with all interest accrued on
the principal amount of the Notes being so prepaid to the date so paid.
"Excess Cash Flow" means, for any period for which such amount is being
determined, the aggregate amount of cash received by Holding from the Company or
any Subsidiary during such period, pursuant to a dividend, distribution or
otherwise, together with any cash proceeds from any non-cash dividends and
distributions received by Holding from the Company or any Subsidiary, minus, for
-----
such period, the sum of (A) all Taxes paid by Holding pursuant to the Tax
-
Sharing Agreement to be entered into by Holding, the Company and one or more
other Subsidiaries, on or before the Closing Date, (B) all compensation paid to
-
employees of Holding pursuant to the Management Agreement to be entered into by
Holding and the Company on or before the Closing Date, and (C) to the extent not
-
included in (A) or (B) above, all Restricted Payments made pursuant to any of
clauses (a) through (c) of section 10.3 of the Agreement.
"Net Cash Proceeds" means any cash or cash equivalent payments received by
Holding from any Capital Markets Transaction, less any underwriting discount or
private placement fee.
"Capital Markets Transaction" means any sale by Holding of its debt
securities or equity securities (including preferred stock) or any rights,
warrants or options to purchase any such securities, whether by a public
offering or a private placement of any such securities.
2
Any capitalized term used herein without definition shall have the meaning
specified in the Agreement.
Optional Prepayment
-------------------
Holding may at any time, at its option upon notice as provided below,
prepay the Notes (in whole or in part, pro rata, in relation to the aggregate
--- ----
outstanding principal amount of all of the Notes), on the date specified in such
notice (each such date being referred to herein as an "Optional Prepayment
Date"), at the principal amount of the Notes so prepaid plus interest thereon
accrued to the Optional Prepayment Date.
Notice of Optional Prepayment
-----------------------------
Holding shall give each holder of a Note written notice of any Optional
Prepayment Date not less than three Business Days and not more than 30 days
prior to such Optional Prepayment Date. Such notice shall specify the aggregate
principal amount of the Notes to be prepaid and the principal amount of each
Note held by such holder to be prepaid.
Maturity; Surrender, Etc.
-------------------------
In the case of each prepayment, whether mandatory or optional, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued and unpaid to such date. From and after such date,
unless Holding shall fail to pay such principal amount when so due and payable,
together with the interest, as aforesaid, interest on such principal amount
shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to
Holding and canceled and shall not be reissued.
Payment on Business Days
------------------------
If any payment to be made hereunder or under any Note is due on a day other
than a Business Day, such payment will be made on the next succeeding Business
Day and such extension of time shall be included in computing interest in
connection with such payment.
This Note is a registered Note and is transferable only upon surrender of
this Note for registration of transfer, duly endorsed, or accompanied by a
written instrument of transfer duly executed, by the holder hereof or his
attorney duly authorized in writing. References in this Note to a "holder" shall
mean the person in whose name this Note is at the time registered on the
register kept by Holding as provided in the Agreement, and Holding may treat
such person as the owner of this Note for the purpose of receiving payment and
for all other purposes, and Holding shall not be affected by any notice to the
contrary.
Except as provided in sections 9.2, 9.4 and 14 of the Agreement, no
subsidiary of Holding shall have any liability for any obligation of Holding
under the Agreement or any Note, or any claim based on, in respect of or by
reason of any such obligation. Each holder of this Note by accepting this Note
hereby waives and releases any such claim, including any claim that
3
the assets or obligations of Holding, either generally or under the Agreement or
any Note, should be substantively consolidated with the assets or obligations of
any of the subsidiaries of Holding and such waiver and release are partial
consideration for the issuance of this Note.
This Note shall be construed in accordance with and governed by the laws of
the State of New York without regard to the conflict of law rules of such state.
IN WITNESS WHEREOF, Xxxxx X. Xxxxxxxxx Holding Company, Inc. has caused
this Note to be duly executed as of the date first above written.
XXXXX X. XXXXXXXXX HOLDING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
4
Exhibit B
---------
Form of Holding Note No. R-13
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). ANY SALE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION
OF THIS NOTE (OTHER THAN TO THE ISSUER HEREOF) MAY BE MADE ONLY IN COMPLIANCE
WITH THE TERMS OF THE RESTRUCTURING AGREEMENT, DATED AS OF MARCH 3, 1993, AND
AMENDED AS OF MARCH 24, 1998, REFERRED TO BELOW AND ONLY IF MADE EITHER (A)
-
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (B)
-
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
No. R-13 New York, N.Y.
$37,181,453.70 March 24, 1998
Xxxxx X. Xxxxxxxxx Holding Company, Inc.
SERIES A VARIABLE RATE
SENIOR NOTE
FOR VALUE RECEIVED, the undersigned, Xxxxx X. Xxxxxxxxx Holding
Company, Inc., a Delaware corporation ("Holding"), promises to pay to Xxxxx
Investment Associates IV, L.P., a Delaware limited partnership, or registered
assigns (the "Holder"), the principal sum of $37,181,453.70 on March 20, 2006 or
such earlier date as the principal may become due and payable pursuant to the
terms hereof (whether at stated maturity or at a date fixed for prepayment or
upon acceleration or otherwise), with interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) accruing from the date
hereof at a rate per annum reset on January 1 and July 1 of each year (each an
"Interest Payment Date"), equal to the greater of (a) 18% and (b) the lesser of
- -
(i) the prime rate (as publicly announced by Xxxxxx Guaranty Trust Company of
-
New York in New York City as its prime rate) as of the immediately preceding
Interest Payment Date, plus 8% and (ii) 20% (together with interest on any
--
overdue principal, including any overdue prepayment of principal, at the rate
described below) on the unpaid balance of such principal amount, payable in
arrears semiannually on each Interest Payment Date, commencing July 1, 1998.
Notwithstanding the foregoing, if and to the extent that on any Interest
Payment Date the aggregate interest payments due under the Notes (as defined
below) then outstanding exceeds the Excess Cash Flow (as defined below) of
Holding for the preceding six-month period, Holding shall apply all such Excess
Cash Flow to the payment of interest due under the Notes and, in lieu of payment
in cash of such excess interest, issue an additional note (a "Secondary Note")
in an aggregate principal amount equal to the amount of such excess interest,
and interest shall accrue thereon from the date of issuance. Each of the other
terms of such Secondary Note shall be identical to the terms of this Note. Each
issuance of Secondary Notes in lieu of payment of interest in cash shall be made
pro rata with respect to all of the Notes then outstanding.
--- ----
Holding shall pay interest on any amount of principal which is not paid
when due, whether at stated maturity or at a date fixed for prepayment or upon
acceleration or otherwise, from the date on which such amount is due until such
amount is paid in full, at the rate borne
by this Note plus 2% per annum, and it shall pay interest on overdue
installments of interest at the same rate, to the extent lawful, on demand.
This Note is one of Holding's Series A Variable Rate Senior Notes (the
"Notes") originally issued in an aggregate principal amount of $55,000,000
pursuant to a Restructuring Agreement, dated as of March 3, 1993, and amended as
of March 24, 1998, between Holding and Xxxxx Investment Associates IV, L.P., as
from time to time amended (the "Agreement"). The holder of this Note is
entitled to the benefits of the Agreement. In addition, the holder of this Note
is entitled to the following benefits:
Mandatory Prepayment
--------------------
Holding shall apply all of the Net Cash Proceeds (as defined below) from
any Capital Markets Transaction (as defined below) to prepay the principal
amount of the Notes (in whole or in part, pro rata, in relation to the aggregate
--- ----
outstanding principal amount of all of the Notes), on the date on which such Net
Cash Proceeds are received by Holding (the "Mandatory Prepayment Date"). In
addition, Holding is obligated to pay on the Mandatory Prepayment Date interest
accrued on the principal amount of the Notes being so prepaid to the date so
paid.
In addition, if upon any Interest Payment Date, the Excess Cash Flow of
Holding for the preceding six-month period exceeds the unpaid and accrued
interest on the Notes as of such Interest Payment Date, then upon such Interest
Payment Date, Holding shall apply such excess first to prepay the principal
amount of any Secondary Notes then outstanding (in whole or in part, pro rata,
--- ----
in relation to the aggregate outstanding principal amount of all of such
Secondary Notes) and, then, after all such Secondary Notes have been prepaid in
full, to prepay the principal amount of all other Notes then outstanding (in
whole or in part, pro rata, in relation to the aggregate outstanding principal
--- ----
amount of all such Notes), in any case, together with all interest accrued on
the principal amount of the Notes being so prepaid to the date so paid.
"Excess Cash Flow" means, for any period for which such amount is being
determined, the aggregate amount of cash received by Holding from the Company or
any Subsidiary during such period, pursuant to a dividend, distribution or
otherwise, together with any cash proceeds from any non-cash dividends and
distributions received by Holding from the Company or any Subsidiary, minus, for
-----
such period, the sum of (A) all Taxes paid by Holding pursuant to the Tax
-
Sharing Agreement to be entered into by Holding, the Company and one or more
other Subsidiaries, on or before the Closing Date, (B) all compensation paid to
-
employees of Holding pursuant to the Management Agreement to be entered into by
Holding and the Company on or before the Closing Date, and (C) to the extent not
-
included in (A) or (B) above, all Restricted Payments made pursuant to any of
clauses (a) through (c) of section 10.3 of the Agreement.
"Net Cash Proceeds" means any cash or cash equivalent payments received by
Holding from any Capital Markets Transaction, less any underwriting discount or
private placement fee.
"Capital Markets Transaction" means any sale by Holding of its debt
securities or equity securities (including preferred stock) or any rights,
warrants or options to purchase any such securities, whether by a public
offering or a private placement of any such securities.
2
Any capitalized term used herein without definition shall have the meaning
specified in the Agreement.
Optional Prepayment
-------------------
Holding may at any time, at its option upon notice as provided below,
prepay the Notes (in whole or in part, pro rata, in relation to the aggregate
--- ----
outstanding principal amount of all of the Notes), on the date specified in such
notice (each such date being referred to herein as an "Optional Prepayment
Date"), at the principal amount of the Notes so prepaid plus interest thereon
accrued to the Optional Prepayment Date.
Notice of Optional Prepayment
-----------------------------
Holding shall give each holder of a Note written notice of any Optional
Prepayment Date not less than three Business Days and not more than 30 days
prior to such Optional Prepayment Date. Such notice shall specify the aggregate
principal amount of the Notes to be prepaid and the principal amount of each
Note held by such holder to be prepaid.
Maturity; Surrender, Etc.
-------------------------
In the case of each prepayment, whether mandatory or optional, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued and unpaid to such date. From and after such date,
unless Holding shall fail to pay such principal amount when so due and payable,
together with the interest, as aforesaid, interest on such principal amount
shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to
Holding and canceled and shall not be reissued.
Payment on Business Days
------------------------
If any payment to be made hereunder or under any Note is due on a day other
than a Business Day, such payment will be made on the next succeeding Business
Day and such extension of time shall be included in computing interest in
connection with such payment.
This Note is a registered Note and is transferable only upon surrender of
this Note for registration of transfer, duly endorsed, or accompanied by a
written instrument of transfer duly executed, by the holder hereof or his
attorney duly authorized in writing. References in this Note to a "holder"
shall mean the person in whose name this Note is at the time registered on the
register kept by Holding as provided in the Agreement, and Holding may treat
such person as the owner of this Note for the purpose of receiving payment and
for all other purposes, and Holding shall not be affected by any notice to the
contrary.
Except as provided in sections 9.2, 9.4 and 14 of the Agreement, no
subsidiary of Holding shall have any liability for any obligation of Holding
under the Agreement or any Note, or any claim based on, in respect of or by
reason of any such obligation. Each holder of this Note by accepting this Note
hereby waives and releases any such claim, including any claim that
3
the assets or obligations of Holding, either generally or under the Agreement or
any Note, should be substantively consolidated with the assets or obligations of
any of the subsidiaries of Holding and such waiver and release are partial
consideration for the issuance of this Note.
This Note shall be construed in accordance with and governed by the laws of
the State of New York without regard to the conflict of law rules of such state.
IN WITNESS WHEREOF, Xxxxx X. Xxxxxxxxx Holding Company, Inc. has caused
this Note to be duly executed as of the date first above written.
XXXXX X. XXXXXXXXX HOLDING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
4
