EXHIBIT 10.(i)(F)(2)
LIMITED WAIVER AND FIRST AMENDMENT
TO
NOTE PURCHASE AGREEMENTS
This Limited Waiver and First Amendment to Note Purchase Agreements (this
"Waiver and Amendment") is made as of March 29, 1997 by and among Xxxxxxxxxx
Xxxx & Co., Incorporated, an Illinois corporation (the "Company"), and the
holders of Senior Notes of the Company identified on Annex 1 hereto
(individually, a "Noteholder" and, collectively, the "Noteholders.")
RECITALS
A. Certain of the Noteholders (the "1993 Noteholders") are parties to a
Note Purchase Agreement, dated as of March 1, 1993, as amended June 30, 1995
(immediately prior to giving effect to this Waiver and Amendment, the "Existing
1993 Agreement" and, after giving effect thereto, the "1993 Agreement"),
pursuant to which the Company issued the series of its Senior Notes identified
below (collectively, immediately prior to giving effect to this Waiver and
Amendment, the "Existing 1993 Notes" and, after giving effect thereto, the "1993
Notes"):
(i) 7.07% Series A Senior Notes due 1998 (the "Series A Notes");
(ii) 7.56% Series B Senior Notes due 2003 (the "Series B Notes");
(iii) 7.61% Series C Senior Notes due 2003 (the "Series C Notes");
(iv) 7.92% Series D Senior Notes due 2001 (the "Series D Notes");
(v) 8.13% Series E Senior Notes due 2003 (the "Series E Notes");
(vi) 8.18% Series F Senior Notes due 2003 (the "Series F Notes"); and
(vii) 8.18% Series G Senior Notes due 2005 (the "Series G Notes").
B. Certain of the Noteholders (the "1995 Noteholders" and, together with
the 1993 Noteholders, the "Noteholders") are parties to a Note Purchase
Agreement, dated as of July 11, 1995 (immediately prior to giving effect to this
Waiver and Amendment, the "Existing 1995 Agreement" and, after giving effect
thereto, the "1995 Agreement"), pursuant to which the Company issued the series
of its Senior Notes identified below (collectively, immediately prior to giving
effect to this Waiver and Amendment, the "Existing 1995 Notes" and, after giving
effect thereto, the "1995 Notes") (the Existing 1993 Agreement and the Existing
1995 Agreement are referred to herein, collectively, as the "Existing Note
Agreements;" the 1993 Agreement and the 1995 Agreement are referred to herein,
collectively, as the "Note Agreements"; the Existing 1993 Notes and the Existing
1995 Notes are referred to herein, collectively, as the "Existing Notes;" and
the 1993 Notes and the 1995 Notes are referred to herein, collectively, as the
"Notes"):
(i) 6.52% Series H Senior Notes due 2000 (the "Series H Notes");
(ii) 6.74% Series I Senior Notes due 2002 (the "Series I Notes"); and
(iii) 6.98% Series J Senior Notes due 2005 (the "Series J Notes").
C. The Company and certain banks (the "Long Term Banks") are parties to a
Long Term Credit Agreement (as amended by the letter agreements and amendments
referred to below in this Recital C, but without giving effect to any
amendments, waivers or modifications that may be made with respect thereto after
the Effective Date (as defined below), the "Long Term Bank Agreement"), dated as
of September 15, 1994, as amended by a letter agreement, dated March 19, 1996,
by a letter agreement which became effective September 6, 1996, and by a Third
Amendment to Long Term Credit Agreement, dated as of December 23, 1996 (the
"Third Bank Long Term Amendment"). The Long Term Banks and the Company will be
entering into a Waiver and Fourth Amendment to Long Term Credit Agreement, dated
as of March 29, 1997 (the "Fourth Bank Long Term Amendment").
D. The Company and certain banks (the "Short Term Banks" and, together
with the Long Term Banks, the "Banks") are parties to a Short Term Credit
Agreement (as amended by
2
the letter agreements and amendments referred to below in this Recital D, but
without giving effect to any amendments, waivers or modifications that may be
made with respect thereto after the Effective Date, the "Short Term Bank
Agreement"), dated as of September 15, 1994, as amended by letter agreements,
dated March 19, 1996 and September 6, 1996, and a Third Amendment to Short Term
Credit Agreement, dated as of December 23, 1996 (the "Third Bank Short Term
Amendment"). The Short Term Banks and the Company will be entering into a Waiver
and Fourth Amendment to Short Term Credit Agreement, dated as of March 29, 1997
(the "Fourth Bank Short Term Amendment"). The Long Term Bank Agreement and the
Short Term Bank Agreement are referred to herein, collectively, as the "Bank
Agreements."
E. The Company has requested that the Noteholders enter into this Waiver
and Amendment to waive compliance with Section 6.2 of the Existing Note
Agreements on the terms and conditions set forth herein (including, without
limitation, the amendments effected hereby) and any Event of Default (as defined
below) resulting from such non-compliance, and the Noteholders are willing to
enter into this Waiver and Amendment subject, among other things, to the Long
Term Banks and the Short Term Banks entering into the Fourth Bank Long Term
Amendment and the Fourth Bank Short Term Amendment, respectively.
F. Terms used and not defined herein have the respective meanings
ascribed thereto in the Existing Note Agreements.
AGREEMENT
1. Waiver. For all periods prior to and including June 27, 1997, the
Noteholders waive compliance by the Company with Section 6.2 of each of the
Existing Note Agreements, waive any right the Noteholders would have as a result
of any Event of Default arising from non-compliance with Section 6.2 of the
Existing Note Agreements prior to and including June 27, 1997, and also waive
any rights the Noteholders would have pursuant to Section 4(a) of this Waiver
and Amendment as the result of an Event of Default arising from a failure by the
Company to comply with the provisions of Sections 11.3, 11.4 and 11.20 of each
of the Bank Agreements; provided, however, that, solely for purposes of Section
5 of the Note
3
Agreements (providing, inter alia, for the payment of certain expenses and the
exercise of certain inspection rights), any Event of Default that would have
been continuing but for the waiver set forth in this Section 1 shall be deemed
to be continuing.
2. Financial Provisions. The financial provisions set forth in this
Section 2 shall apply notwithstanding anything to the contrary set forth in the
Existing Note Agreements or the Bank Agreements.
(a) Interest Prior to Second Quarter. Interest on the Notes accruing
prior to March 29, 1997 shall accrue at the non-default rates set forth in the
1993 Agreement or the 1995 Agreement, as applicable.
(b) Second Quarter Interest. The following interest rates shall apply
from and including March 29, 1997 to and including June 28, 1997 for each of the
series of Notes identified below:
Series A Notes - 8.695% per annum
Series B Notes - 9.185% per annum
Series C Notes - 9.235% per annum
Series D Notes - 9.545% per annum
Series E Notes - 9.755% per annum
Series F Notes - 9.805% per annum
Series G Notes - 9.805% per annum
Series H Notes - 8.145% per annum
Series I Notes - 8.365% per annum
Series J Notes - 8.605% per annum
(c) Interest after Second Quarter. The following interest rates shall
apply on and after June 29, 1997 for each of the series of Notes identified
below:
Series A Notes - 9.195% per annum
4
Series B Notes - 9.685% per annum
Series C Notes - 9.735% per annum
Series D Notes - 10.045% per annum
Series E Notes - 10.255% per annum
Series F Notes - 10.305% per annum
Series G Notes - 10.305% per annum
Series H Notes - 8.645% per annum
Series I Notes - 8.865% per annum
Series J Notes - 9.105% per annum
(d) Interest Rate for Late Payments. For the avoidance of doubt, it
is understood and agreed that, with respect to each series of Notes, the
non-default rate of interest referred to in the phrase "the interest rate
borne by such series of Notes" in the definition of "Default Rate" in the
Note Agreements shall mean the interest rates specified above, for the
periods specified above, in this Section 2.
(e) Payment Dates for Interest. Interest on the 1993 Notes shall be
payable on March 15, June 15, September 15 and December 15 in each year,
commencing on June 15, 1997. Interest on the 1995 Notes shall be payable on
January 15, April 15, July 15 and October 15 in each year, commencing on
April 15, 1997.
(f) Makewhole Amount. Any prepayment of the Notes before, after or
upon the occurrence of a Default or an Event of Default with cash from any
source, whether from internal cash, external investment, proceeds of the
sale of any asset or business, a refinancing or otherwise, shall be made
together with all interest accrued to the date of prepayment and a
Makewhole Amount on the principal amount so prepaid determined as of the
date of such prepayment; provided that, notwithstanding the change in
interest rates and maturities in respect of the Notes as provided herein,
any calculation of the Makewhole Amount shall be made on
5
the basis of the interest rates, interest payment dates, principal
prepayment dates and amounts, maturity dates and amounts payable at
maturity in effect under the Existing Note Agreements (which term, as
stated in the Recitals, means such documents as in effect immediately prior
to giving effect to this Waiver and Amendment). The Makewhole Amount due
under any provision of this Waiver and Amendment (including, without
limitation, paragraphs (h), (i) and (j) of this Section 2) or the Note
Agreements shall be in the amount so calculated.
(g) Waiver Fee. In consideration for the execution by the Noteholders
of this Waiver and Consent, the Company shall pay to each Noteholder, on
the Effective Date, by wire transfer in immediately available funds, a
waiver fee in the amount set forth opposite its name on Annex 1 hereto.
(h) Mandatory Prepayment on Paydown of Bank Debt. If the Company, or
any of its Subsidiaries or Affiliates, shall prepay any principal of any
Loan (as defined in the Bank Agreements) at any time, or if the Aggregate
Bank Commitment (as defined below) shall be permanently reduced at any
time, the Company shall, or shall cause one or more of its Subsidiaries or
Affiliates to, simultaneously prepay a portion of principal of the 1993
Notes and the 1995 Notes in an amount in each case (without double
counting) equal to the outstanding principal amount of such Notes
multiplied by a fraction, of which
(i) the numerator shall be the greater of the aggregate
principal amount of Loans so prepaid or the amount of the reduction in
the Aggregate Bank Commitment (whether under the Long Term Bank
Agreement, the Short Term Bank Agreement or both) and
(ii) the denominator shall be, in the case of any such
prepayment, the aggregate principal amount of Loans under both Bank
Agreements outstanding immediately prior to such prepayment or, in the
case of any such reduction, the Aggregate Bank Commitment in effect
immediately prior to such reduction.
6
Each such prepayment shall be made together with all interest accrued to
the date of prepayment and the Makewhole Amount on the principal amount so
prepaid determined as of the date of such prepayment. The "Aggregate Bank
Commitment" means the sum of the Commitments (as such term is defined in
the Bank Agreements) under both Bank Agreements.
(i) Mandatory Prepayment on Change of Control. If a Change of
Control (as defined in the Bank Agreements) shall occur, then, upon 30 days
written demand made by holders of at least two-thirds of the outstanding
principal amount of the 1993 Notes or the 1995 Notes, as the case may be,
to the Company within 180 days after the occurrence of such Change in
Control (or, if later, within 180 days after such holders' obtaining actual
knowledge of such Change in Control), the Company shall prepay all of the
1993 Notes, if such demand was made in respect of such Notes and/or all of
the 1995 Notes, if such demand was made in respect of such Notes. Such
principal amount shall be paid on the next Business Day after its receipt
of such demand, together with all interest accrued to the date of
prepayment and the Makewhole Amount on the principal amount so prepaid
determined as of the date of such prepayment.
(j) Maturity Date. The entire principal amount of the Notes shall be
due and payable on August 29, 1997, together with all interest accrued to
such date and the Makewhole Amount on the principal amount so paid
determined as of the date of such payment.
3. Covenants. The covenants set forth in this Section 3 shall apply
notwithstanding anything to the contrary set forth in the Existing Note
Agreements or the Bank Agreements.
(a) Asset Dispositions. The Company shall not, and shall not permit
any of its Subsidiaries to, effect any Disposition (as defined below) if,
after giving effect thereto, the aggregate amount of Net Proceeds (as
defined below) received and to be received from such Disposition and from
all other Dispositions consummated on or after December 23, 1996 would
exceed $20,000,000. "Disposition" and "Net Proceeds" shall have the
respective meanings ascribed thereto in the
7
Third Bank Long Term Amendment and the Third Bank Short Term Amendment.
(b) Debt Incurrence. The Company shall not, and shall not permit any
of its Subsidiaries to, at any time incur any Funded Debt or any Debt (as
"Debt" is defined in the Bank Agreements); provided, however, that the
Company may incur Funded Debt or Debt pursuant to the Liquidity Facility,
the Deutsche Agreement, the GECC Inventory Program and the GECC Receivables
Program (as each such term is defined below). For the period commencing on
the Effective Date and ending on and including June 27, 1997, the
Noteholders shall waive and defer the effect of any non-compliance by the
Company with Section 6.3 of the Note Agreements in connection with the
Company's incurrence of Funded Debt or Debt under the facilities listed in
the proviso to the immediately preceding sentence; provided, however, that
on and after June 28, 1997, the effect of any such non-compliance shall be
determined without giving effect to such deferral or waiver. As used in
this Waiver and Amendment, the following terms have the following meanings:
"Deutsche Agreement" means the Program Agreement dated as of October
7, 1996, among Deutsche Financial Services Corporation, Xxxxxxxxxx
Xxxx & Co., Incorporated and Lechmere, Inc., as amended by agreement
dated as of October 30, 1996.
"GECC Inventory Program" means the Program Agreement dated October 12,
1989, between Xxxxxxxxxx Xxxx & Co., Incorporated and General Electric
Capital Corporation, as amended by letter agreement dated October 12,
1989, and by Program Agreement Amendment dated as of March 4, 1997,
and by letter agreement dated February 14, 1997. The GECC Inventory
Program is governed in the manner described in (S)(S) 2-6 of Draft
GTM031497 of the Amended and Restated Program Agreement dated March 4,
1997, but unsigned, in the form submitted to counsel to the
Noteholders on March 25, 1997.
"GECC Receivables Program" means the Account Purchase Agreement dated
as of June 24, 1988, as amended, restated and renamed the Account-
8
Related Agreement dated as of April 1, 1996, between Xxxxxxxxxx Xxxx
Credit Corporation and Xxxxxxxxxx Xxxx & Co., Incorporated, and the
Interim Consumer Credit Card Program dated as of April 1, 1996, as
amended, restated and renamed the Bank Credit Card Program Agreement
dated as of April 1, 1996, between Monogram Credit Card Bank of
Georgia and Xxxxxxxxxx Xxxx & Co., Incorporated.
"Liquidity Facility" means the Credit Agreement dated as of October 4,
1996 among Xxxxxxxxxx Xxxx & Co., Incorporated, The Bank of Nova
Scotia as Administrative Agent and as a Lender, The Bank of New York
as Documentation Agent and as a Lender, and General Electric Capital
Corporation as a Lender, as amended by agreement dated as of December
23, 1996.
(c) Liens. The Company shall not, and shall not permit any of its
Subsidiaries to, incur any Liens pursuant to clauses (i) (related to
financing or refinancing of real estate or tangible fixed assets), (xii)
(relating to Liens in favor of the Banks), or (xix) (relating to a basket
permission for Liens securing Debt up to 1% of the Company's total assets)
of Section 11.2 of each of the Bank Agreements or pursuant to clause (t)
(relating to a basket permission for Liens) of Section 6.4 of the Note
Agreements.
(d) Restricted Payments. The Company shall not make any Restricted
Payment other than amounts payable to the Parent to permit the Parent to
pay its corporate and business expenses in an aggregate amount for all such
expenses not to exceed $1,333,333 for the period from the commencement of
its current Fiscal Year to August 29, 1997 (with no carry-over for amounts
not so used in any prior Fiscal Year). Notwithstanding anything to the
contrary set forth in this Waiver and Amendment or in the Note Agreements,
no Event of Default shall result from the payment by the Company of a
dividend on March 31, 1997 in the amount of $3,066,875 on the Company's
Debt-Like Preferred Stock.
(e) Mergers. The Company shall not, and shall not permit any of its
Subsidiaries to, voluntarily liquidate or
9
dissolve, or consolidate or merge with or into any other Person, or
participate in a share exchange with, or sell, lease, transfer, contribute
or otherwise dispose of all or substantially all of its assets to, any
other Person; provided, however, that any of the Company's Subsidiaries may
be consolidated or merged with or into the Company or any other Subsidiary
of the Company.
(f) Repayment of Subordinated Debt and Debt-Like Preferred Stock. The
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, distribute, make or set apart
any sum or property for the prepayment of principal of or prepayment charge
or premium on, or any redemption, retirement, purchase or other
acquisition, directly or indirectly, of, any Subordinated Debt or any Debt-
Like Preferred Stock.
(g) Deposits with Banks. The Company shall not, nor shall it permit
any of its Subsidiaries to, maintain amounts on deposit with any Bank to be
in an aggregate amount in excess of an amount consistent with the past
practices of the Company and its Subsidiaries.
(h) No Amendment to Financing Documents. The Company shall not enter
into any amendment, waiver or modification of the Bank Agreements. The
Company shall not enter into any amendment, waiver or modification of the
GECC Inventory Program, the GECC Receivables Program, the Deutsche
Agreement or the Liquidity Facility, except for any amendment to any of
such documents which solely increases the amounts that may be borrowed by
the Company or its Subsidiaries thereunder and except that the Company may
(i) enter into an amendment of the GECC Receivables Program if
such amendment shall not secure the Seller Notes (as defined GECC
Receivables Program), provide for any of such Seller Notes to be
payable on a date earlier than the date on which such Seller Notes are
payable as of the Effective Date, or otherwise materially adversely
affect the Noteholders, or
(ii) enter into any other amendment of the GECC Receivables
Program so long as such amendment would not constitute an Event of
Default (as defined
10
in the Bank Agreements) under clauses (ii), (iii), or (iv) of Section
13.1(j) of the Bank Agreements.
(i) Information. In addition to furnishing the information required
pursuant to Sections 4 and 5 of the Existing Note Agreements, the Company shall
provide to each Noteholder the same reports and other information as are
provided to the Banks pursuant to either of the Bank Agreements (including,
without limitation, the monthly financial information required to be provided to
the Banks pursuant to the amendments to the Long Term Bank Agreement and the
Short Term Bank Agreement effected by Section 1.8 of the Third Bank Long Term
Amendment and the Third Bank Short Term Amendment), and such other information
as may be reasonably requested by the Noteholders or provided to the Banks
pursuant to any amendment or other modification to the Long Term Bank Agreement
or the Short Term Bank Agreement entered into after the Effective Date. All such
reports and other information provided to the Banks shall be provided to the
Noteholders substantially contemporaneously with the provision thereof to the
Banks. All such information provided to the Noteholders pursuant to this
paragraph (i) shall be subject to Section 5(b) of the Note Agreements.
(j) Diligence. In addition to furnishing the information required pursuant
to Sections 4(p) and 5 of the Existing Note Agreements, the Company shall, upon
request of any Noteholder, provide such Noteholder with all information such
Noteholder may reasonably request regarding progress formulating a restructuring
plan for consideration by the Noteholders, and regarding financial support,
investments and contractual and other relationships that may exist between the
Company or any of its Subsidiaries or Affiliates, on the one hand, and General
Electric Capital Corporation or any of its Subsidiaries or Affiliates, on the
other hand. All information provided to the Noteholders pursuant to this
paragraph (j) shall be subject to Section 5(b) of the Note Agreements.
4. Defaults.
(a) Cross-Default. An Event of Default shall exist under the Note
Agreements upon the occurrence of an Event of Default under (and as defined in)
either of the
11
Bank Agreements (such Event of Default under either Bank Agreement being
referred to as a "Bank Default"). No waiver, amendment or other action by
the Banks with respect to any Bank Default shall be effective to terminate
the Event of Default under the Note Agreements arising from such Bank
Default.
(b) Default under Sections 3 and 6 of this Waiver and Amendment. An
Event of Default shall exist under the Note Agreements if the Company shall
default in the due performance and observance of any covenant, provision,
agreement or condition set forth in Section 3 of this Waiver and Amendment
or if any representation or warranty of the Company set forth in Section 6
of this Waiver and Amendment shall be false or incorrect or breached in any
material respect.
5. Lechmere Guaranty. The Company shall cause Lechmere, Inc. to guaranty
(the "Lechmere Guaranty") all amounts owing in respect of the Notes pursuant to
a Guaranty substantially in the form of Exhibit A hereto.
6. Representations and Warranties. The Company represents and warrants
as of the Effective Date as follows:
(a) Organization and Authority. The Company is a corporation duly
organized and in good standing under the laws of Illinois and has all requisite
power and authority to execute and deliver this Waiver and Amendment.
(b) Authorization, Execution and Enforceability. The execution and
delivery by the Company of this Waiver and Amendment has been duly authorized by
all necessary action on the part of the Company, has been duly executed and
delivered, and constitutes the legal, valid and binding obligation of the
Company enforceable in accordance with its terms, except as such enforceability
may be:
(i) limited by bankruptcy, insolvency or other similar laws
affecting the enforceability of creditors' rights generally; and
(ii) subject to the availability of equitable remedies.
12
(c) No Conflicts. Neither the execution and delivery by the Company of
this Waiver and Amendment, nor the performance by the Company of its obligations
hereunder, conflicts with, results in any breach of any of the provisions of,
constitutes a default under, or violates or results in the creation of any Lien
upon or other security interest in any property of the Company under, the
provisions of:
(i) the certificate of incorporation or by-laws of the Company;
(ii) any agreement, instrument or conveyance to which the
Company, any of its Subsidiaries or any of their respective properties
may be bound or affected except as disclosed by letter, dated March
27, 1997, by the Company to counsel to the Noteholders; or
(iii) any statute, rule or regulation or any order, judgment or
award of any court, tribunal or arbitrator by which the Company, any
of its Subsidiaries or any of their respective properties may be bound
or affected.
(d) Litigation. There are no proceedings pending or, to the knowledge
of the Company, threatened against the Company, any of its Subsidiaries or
any of their respective properties in any court or before any Governmental
Body or arbitration board or tribunal which, either individually or in the
aggregate, would conflict or interfere with the ability of the Company to
execute, deliver and perform its obligations under this Waiver and
Amendment, the Note Agreements or the Notes.
(e) Disclosure. None of the documents delivered to certain Noteholders
at a meeting at the Company's offices in Chicago, Illinois on March 20,
1997 contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein,
in light of the circumstances under which they were made, not misleading.
There is no fact which the Company did not disclose to the Noteholders on
March 20, 1997 which materially affects adversely or, so far as the Company
can now foresee, will materially affect adversely the properties, business,
prospects,
13
profits or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as whole, or the ability of the Company to perform its
obligations under this Waiver and Amendment, the Note Agreements or the
Notes.
(f) Bank Agreements. All of the documents comprising the Long Term
Bank Agreement and the Short Term Bank Agreement are identified in the
Recitals of this Waiver and Amendment.
(g) Existence of Events of Default. There are no Events of Default or
material Defaults in existence under the Note Agreements on the Effective
Date, after giving effect to the waiver set forth in Section 1 hereof and
there are no Events of Default (as defined in the Bank Agreements), and no
material events which, with the passage of time or the giving of notice, or
both, would become any such Event of Default, in existence on the Effective
Date, after giving effect to the Fourth Bank Long Term Amendment and the
Fourth Bank Short Term Amendment.
(h) Outstanding Obligations Under Other Agreements. The amounts of
specific obligations outstanding as of specific dates under each of the
following agreements are shown below:
Approx.
Amount
Outstanding
Facility ($ in millions) Item Date
-------- --------------- ---- -----
Long Term Credit Agreement $ 603.0 Principal 3/25/97
Short Term Credit Agreement $ 455.7 Principal 3/25/97
Liquidity Facility $ 0.0 Principal 3/25/97
Deutsche Agreement $ 73.0 Outstanding 3/25/97
advances
and pending
commitments
14
GECC Inventory Program $ 469.0 Outstanding 3/25/97
advances
and pending
commitments
GECC Receivables Program $4,969.0 Customer account 3/01/97
balance
GECC Receivables Program $ 262.0 Loss Sharing Note 3/01/97
7. Conditions to Effectiveness. This Waiver and Amendment shall be
effective only if the following conditions shall have been satisfied on or prior
to March 28, 1997 (the "Effective Date"):
(a) Lechmere Guaranty. Lechmere, Inc. shall have duly executed and
delivered the Lechmere Guaranty.
(b) Bank Waiver. The Banks and the Company shall have executed a
Waiver and Fourth Amendment to Long Term Credit Agreement and a Waiver and
Fourth Amendment to Short Term Credit Agreement in substantially the forms
attached hereto as Exhibits B and C, respectively.
(c) Execution by All Noteholders. Each of the Noteholders and the
Company shall have executed this Waiver and Amendment.
(d) Waiver Fee. The Company shall have paid the waiver fee provided
for in Section 2(g) of this Waiver and Amendment.
(e) Fees and Expenses. The Company shall have paid the fees and
expenses referred to in Section 8(c) of this Waiver and Amendment.
(f) Secretary's Certificate. The Company shall have delivered to the
Noteholders a certificate of its Secretary in the form of Exhibit D-1
hereto, and shall have caused Lechmere, Inc. to deliver to the Noteholders
a certificate of its Secretary in the form of Exhibit D-2 hereto, or, in
either case, in form and substance satisfactory to the Noteholders.
15
(g) Opinion of Counsel. The Company shall have delivered to the
Noteholders an opinion of Altheimer & Xxxx in the form of Exhibit E hereto.
(h) Proceedings Satisfactory. All proceedings taken in connection with
this Waiver and Amendment and all documents and papers relating thereto
shall be satisfactory to the Noteholders and their special counsel. The
Noteholders and their special counsel shall have received copies of such
documents and papers as they may reasonably request in connection
therewith, in form and substance satisfactory to them.
8. Miscellaneous.
(a) Limitation of Waiver and Amendment. The terms of this Waiver and
Amendment shall not, except as set forth in Section 1 hereof, operate as or
constitute a waiver by the Noteholders of, or otherwise prejudice, the
Noteholders' rights, remedies or powers under the Existing Notes, the
Existing Note Agreements or under applicable law. Except as otherwise
expressly provided herein,
(i) no other terms and provisions of the Existing Note Agreement
or the Existing Notes are modified or changed by this Waiver and
Amendment, and
(ii) the terms and provisions of the Existing Note Agreements and
the Existing Notes shall continue in full force and effect.
The Company hereby acknowledges, confirms, and ratifies all of its
obligations and duties under the Notes and the Note Agreements. Except as
set forth in Section 1 hereof, this Waiver and Amendment is not a
limitation on the ability of any Noteholder to exercise any of its rights
and remedies due to any Default or Event of Default. This Waiver and
Amendment may not be contradicted by evidence of any actual or alleged
prior, contemporaneous or subsequent understandings or agreements of the
parties, written or oral, express or implied, other than a writing which
expressly amends or supersedes this Waiver and Amendment, and there are no
unwritten oral understandings or agreements between
16
the parties concerning the subject matter of this Waiver and Amendment.
This Waiver and Amendment may not be amended, modified or waived except by
a written instrument signed by all of the parties hereto except that any
amendment to or waiver of any provision of the Existing Note Agreements
effected hereby may be superseded by an amendment to or waiver of such
provision signed by the holders of the requisite percentage of outstanding
Notes, as specified in the Note Agreements.
(b) Effect of Execution by Noteholders. Each of the Noteholders, in
executing this Waiver and Amendment, is executing it only with respect to
the Notes which it holds and the Note Agreement to which it is a party.
(c) Expenses. Without limitation on the Company's obligations to pay
expenses of the Noteholders, as set forth in the Note Agreements or in any
other document to which any Noteholder and the Company may be a party, the
Company shall pay the reasonable out-of-pocket costs incurred by the
Noteholders (including, without limitation, travel costs) in connection
with consideration of this Waiver and Amendment or any future waiver or
amendment that may be proposed by any Noteholder or the Company, or any of
its Subsidiaries or Affiliates (regardless of whether it shall become
effective), the presentation, review or analysis of the Company's existing
financial arrangements or any financial plan proposed by the Company, or
any of its Subsidiaries or Affiliates, or any analysis of the rights and
remedies of the Noteholders under the Note Agreements or in any other
document to which any Noteholder and the Company may be a party, and the
Company shall also pay all reasonable fees and disbursements of special
counsel to the Noteholders, and the reasonable allocated cost of in-house
counsel for any Noteholder, related to any of the foregoing.
(d) Duplicate Originals; Execution in Counterpart. Two or more
duplicate originals of this Waiver and 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 Waiver and
Amendment may be executed in one or more counterparts and shall be
effective when at least one counterpart shall have been executed by each
party
17
hereto, and each set of counterparts which, collectively, show execution by
each party hereto shall constitute one duplicate original.
(e) Headings. All headings and captions preceding the text of the
several Section of this Waiver and Amendment are intended solely for
convenience of reference and shall not constitute a part of this Waiver and
Amendment nor shall they affect its meaning, construction or effect.
(f) Successors and Assigns. This Waiver and Amendment shall be binding
upon each of the parties hereto and their respective successor and assigns.
(g) Notices. Any notices sent in respect of this Waiver and Amendment
shall be sent in the manner and to the addresses specified in the Note
Agreements.
(h) Governing Law. THIS WAIVER AND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Amendment to be duly executed by one or more of their authorized officers.
[Remainder of Page Intentionally Blank; Next Pages are Signature Pages]
18
XXXXXXXXXX XXXX & CO., INCORPORATED
By /s/ X. X. Xxxxx
------------------------------------
Name: X. X. Xxxxx
Title: Senior Vice President - Finance
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By New York Life Insurance Company
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
NEW YORK LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Investment Vice President
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director - Special Loans
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Associate Vice President
Corporate Fixed-Income Securities
EMPLOYERS LIFE INSURANCE COMPANY
OF WAUSAU
By /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Subsidiary & Affiliate Investments
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
(formerly Financial Horizons Life
Insurance Company)
By /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Associate Vice President
Corporate Fixed-Income Securities
WISCONSIN HEALTH CARE LIABILITY
INSURANCE PLAN
By /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx, Vice President
Title: Assistant Treasurer
Employers Insurance Company
of Wausau
Acting Agent Wisconsin Health
Care Liability Insurance Plan
WEST COAST LIFE INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Attorney-in-Fact
SUN LIFE ASSURANCE COMPANY OF CANADA
By /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, U.S. Private
Placements for President
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Associate Counsel -
for Secretary
SUN LIFE ASSURANCE COMPANY OF
CANADA (U.S.)
By /s/ X. Xxxxx Thomson
--------------------------------------
Name: X. Xxxxx Xxxxxxx
Title: Treasurer
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
By CIGNA INVESTMENTS, INC.
By /s/ Xxxxx X. Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Managing Director
AID ASSOCIATION FOR LUTHERANS
By /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President - Securities
By /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President - Securities
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By /s/ Xxxxxxx X. XxXxxx
--------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Investment Officer
THE TRAVELERS INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Second Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/ Xxxx Xxx XxXxxxxx
--------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
CM LIFE INSURANCE COMPANY
By /s/ Xxxx Xxx XxXxxxxx
--------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Investment Officer
THE VARIABLE ANNUITY LIFE INSURANCE
COMPANY
By /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Investment Officer
THE FRANKLIN LIFE INSURANCE
COMPANY
By /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Investment Officer
Xxxxxxxx & Co. As Nominee For:
THE CANADA LIFE ASSURANCE
COMPANY
By /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Assistant Vice President
Xxxxxxxx & Co. As Nominee For:
CANADA LIFE INSURANCE
COMPANY OF AMERICA
By /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Assistant Vice President
LUTHERAN BROTHERHOOD
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
AMERICAN FAMILY LIFE INSURANCE
COMPANY
By /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Investment Director
KANSAS CITY LIFE INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
THE SAFECO LIFE INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
WOODMEN ACCIDENT AND LIFE COMPANY
By /s/ A. M. XxXxxx
--------------------------------
Name: A. M. XxXxxx
Title: Vice President
and Assistant Treasurer
PROVIDENT MUTUAL LIFE INSURANCE
COMPANY OF PHILADELPHIA
By /s/ S. C. Xxxxx
--------------------------------
Name: S. C. Xxxxx
Title: Vice President
PROVIDENT MUTUAL LIFE INSURANCE
COMPANY
By /s/ S. C. Xxxxx
--------------------------------
Name: S. C. Xxxxx
Title: Vice President
GREAT WESTERN INSURANCE COMPANY
By MIMLIC ASSET MANAGEMENT
COMPANY
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
GUARANTEE RESERVE LIFE INSURANCE COMPANY
By MIMLIC ASSET MANAGEMENT
COMPANY
By /s/ Xxx X. xx Xxxxxxx
-------------------------------------
Name: Xxx X. xx Xxxxxxx
Title: Vice President
NATIONAL TRAVELERS LIFE COMPANY
By MIMLIC ASSET MANAGEMENT
COMPANY
By /s/ Xxx X. xx Xxxxxxx
-------------------------------------
Name: Xxx X. xx Xxxxxxx
Title: Vice President
NORTHWEST LIFE ASSURANCE COMPANY
OF CANADA
By MIMLIC ASSET MANAGEMENT
COMPANY
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BERKSHIRE LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Investment Officer
SECURITY MUTUAL LIFE INSURANCE
COMPANY
By /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Second Vice President
Annex 1 to March 29, 1997
Limited Waiver and First Amendment
Noteholders Series Original 1993 1993 Notes 1995 Notes Waiver Fee
Notes Principal Principal 0.3906250%
----------------------------------------------------------------------------------------------------------------------------------
New York Life Insurance and Annuity Corp. H $ 30,000,000.00 $ 117,187.50
----------------------------------------------------------------------------------------------------------------------------------
New York Life Insurance Company H $ 10,000,000.00 $ 39,062.50
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Teachers Insurance and Annuity Association of America G $ 35,000,000.00 $35,000,000.00 $ 136,718.75
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Nationwide Life Insurance Company I $ 12,500,000.00 $ 48,828.13
----------------------------------------------------------------------------------------------------------------------------------
Nationwide Life Insurance Company C $ 5,000,000.00 $ 4,285,681.82 $ 19,531.25
----------------------------------------------------------------------------------------------------------------------------------
Nationwide Life Insurance Company F $ 10,000,000.00 $10,000,000.00 $ 39,062.50
----------------------------------------------------------------------------------------------------------------------------------
Employers Life Insurance Company of Wausau C $ 3,000,000.00 $ 2,571,409.09 $ 11,718.75
----------------------------------------------------------------------------------------------------------------------------------
Financial Horizons Life Insurance Company C $ 2,000,000.00 $ 1,714,272.73 $ 7,812.50
----------------------------------------------------------------------------------------------------------------------------------
Wisconsin Health Care Liability Insurance Plan I $ 500,000.00 $ 1,953.13
----------------------------------------------------------------------------------------------------------------------------------
West Coast Life Insurance Company I $ 2,000,000.00 $ 7,812.50
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Sun Life Assurance Company of Canada D $ 2,000,000.00 $ 2,000,000.00 $ 7,812.50
----------------------------------------------------------------------------------------------------------------------------------
Sun Life Assurance Company of Canada (U.S.) D $ 9,000,000.00 $ 9,000,000.00 $ 35,156.25
----------------------------------------------------------------------------------------------------------------------------------
Sun Life Assurance Company of Canada (U.S.) I $ 10,000,000.00 $ 39,062.50
----------------------------------------------------------------------------------------------------------------------------------
Sun Life Assurance Company of Canada I $ 2,500,000.00 $ 9,765.63
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Connecticut General Life Insurance Company H $ 12,000,000.00 $ 46,875.00
----------------------------------------------------------------------------------------------------------------------------------
Connecticut General Life Insurance Company I $ 10,000,000.00 $ 39,062.50
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Aid Association for Lutherans I $ 10,000,000.00 $ 39,062.50
----------------------------------------------------------------------------------------------------------------------------------
Aid Association for Lutherans C $ 10,000,000.00 $ 8,571,363.63 $ 39,062.50
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx Mutual Life Insurance Company H $ 20,000,000.00 $ 78,125.00
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
The Travelers Insurance Company I $ 10,000,000.00 $ 39,062.50
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Connecticut Mutual Life Insurance Company (Mass I $ 11,000,000.00 $ 42,968.75
Mutual)
----------------------------------------------------------------------------------------------------------------------------------
CM Life Insurance Co. (Mass Mutual) I $ 4,000,000.00 $ 15,625.00
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
The Variable Annuity Life Insurance Company J $ 10,000,000.00 $ 39,062.50
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
The Franklin Life Insurance Company C $ 2,000,000.00 $ 1,714,272.73 $ 7,812.50
----------------------------------------------------------------------------------------------------------------------------------
The Franklin Life Insurance Company G $ 3,000,000.00 $ 3,000,000.00 $ 11,718.75
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
The Canada Life Assurance Company A $ 5,000,000.00 $ 5,000,000.00 $ 19,531.25
----------------------------------------------------------------------------------------------------------------------------------
Canada Life Insurance Company of America A $ 2,500,000.00 $ 2,500,000.00 $ 9,765.63
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Lutheran Brotherhood I $ 7,000,000.00 $ 27,343.75
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
American Family Life Insurance Company H $ 5,000,000.00 $ 19,531.25
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Kansas City Life Insurance Co. I $ 5,000,000.00 $ 19,531.25
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Safeco Life Insurance Company E $ 5,000,000.00 $ 5,000,000.00 $ 19,531.25
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Woodmen Accident and Life Company F $ 2,500,000.00 $ 2,500,000.00 $ 9,765.63
----------------------------------------------------------------------------------------------------------------------------------
Woodmen Accident and Life Company J $ 2,000,000.00 $ 7,812.50
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Provident Mutual Life Insurance Company of Philadelphia A $ 2,000,000.00 $ 2,000,000.00 $ 7,812.50
----------------------------------------------------------------------------------------------------------------------------------
Provident Mutual Life Insurance Company I $ 1,500,000.00 $ 5,859.38
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Great Western Insurance Company* J $ 500,000.00 $ 1,953.13
----------------------------------------------------------------------------------------------------------------------------------
Guarantee Reserve Life Insurance Company J $ 500,000.00 $ 1,953.13
----------------------------------------------------------------------------------------------------------------------------------
National Travelers Life Company J $ 1,000,000.00 $ 3,906.25
----------------------------------------------------------------------------------------------------------------------------------
North West Life Assurance Company of Canada H $ 1,000,000.00 $ 3,906.25
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Berkshire Life Insurance Company B $ 2,000,000.00 $ 1,714,000.00 $ 7,812.50
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Security Mutual Life Insurance Company H $ 2,000,000.00 $ 7,812.50
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
$100,000,000.00 $96,571,000.00 $180,000,000.00 $1,093,750.00
----------------------------------------------------------------------------------------------------------------------------------
