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NFO WORLDWIDE, INC.
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FIRST AMENDMENT
Dated as of March 15, 1999
to
NOTE PURCHASE AGREEMENTS
Dated as of November 20, 1998
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Re: $17,000,000 9.84% Senior Subordinated Notes
Due November 15, 2008
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FIRST AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS FIRST AMENDMENT dated as of March 15, 1999 (the or this "FIRST
AMENDMENT") to the Note Purchase Agreements each dated as of November 20, 1998
is among NFO WORLDWIDE, INC., a Delaware corporation (the "COMPANY"), and each
of the institutions which is a signatory to this First Amendment (collectively,
the "NOTEHOLDERS").
R E C I T A L S:
A. The Company and each of the Noteholders have heretofore entered into
separate and several Note Purchase Agreements each dated as of November 20, 1998
(collectively, the "NOTE PURCHASE AGREEMENTS"). The Company has heretofore
issued its $17,000,000 9.84% Senior Subordinated Notes due November 15, 2008
(the "NOTES") pursuant to the Note Purchase Agreements. The Noteholders are the
holders of 100% of the outstanding principal amount of the Notes.
B. The Company and the Noteholders now desire to amend the Note
Purchase Agreements in the respects, but only in the respects, hereinafter set
forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreements unless herein defined or the
context shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this First Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
NOW, THEREFORE, the Company and the Noteholders, in consideration of
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1. The definition of "EXCLUDED GUARANTIES" contained in Schedule B to
the Note Purchase Agreements shall be and is hereby amended in its entirety to
read as follows:
"EXCLUDED GUARANTIES" means (i) the Guaranties of the
Restricted Subsidiaries issued on the Closing Date in respect of the
Notes, the Existing Senior Notes, the Senior Notes and the Debt under
the Fleet/Chase Debt Facility, (ii) the Guaranties of the Restricted
Subsidiaries in respect of the March 1999 Notes, (iii) any other
Guaranties of Subsidiaries issued thereafter in respect of the Debt
identified in the foregoing clauses (i) and (ii), (iv) Guaranties of
any refinancing, replacement or renewal of such Debt so long as the
aggregate
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principal amount of such Debt is not in excess of that outstanding or,
in the case of the Fleet/Chase Debt Facility, available to be borrowed,
immediately after giving effect to the sale of the March 1999 Notes on
the March 1999 Closing Date and the holders of such Debt (other than
any holders of Subordinated Funded Debt) are parties to the Sharing
Agreement, and (v) any Guaranties of Subsidiaries of the Existing
Senior Notes, the Senior Notes, the Notes, the March 1999 Notes or the
obligations of the Company under the Fleet/Chase Debt Facility if
Guaranties of such Subsidiaries shall also have been issued in respect
of the Notes pursuant to Section 9.7(a).
1.2. The definition of "FUNDED DEBT" contained in Schedule B to the
Note Purchase Agreements shall be and is hereby amended in its entirety to read
as follows:
"FUNDED DEBT" means, with respect to any Person, all Debt of
such Person which by its terms or by the terms of any instrument or
agreement relating thereto matures, or which is otherwise payable or
unpaid, one year or more from, or is directly or indirectly renewable
or extendible at the option of the obligor in respect thereof to a date
one year or more (including, without limitation, an option of such
obligor under a revolving credit or similar agreement obligating the
lender or lenders to extend credit over a period of one year or more)
from, the date of the creation thereof. The amount of Funded Debt
outstanding under any such revolving credit or similar agreement
(including the Fleet/Chase Debt Facility) on any date shall be deemed
to be the average daily amount outstanding under such facility during
the period of 365 consecutive days ending on and including such date,
and not the actual amount outstanding on such date; PROVIDED, HOWEVER,
that (i) as used in the definitions of "Consolidated Senior Funded
Debt" and "Consolidated Funded Debt," but only as such terms are used
in Section 10.14, the amount of Funded Debt outstanding under any such
revolving credit or similar agreement (including the Fleet/Chase Debt
Facility) on any date shall be the actual amount outstanding on such
date, and (ii) for purposes of Sections 10.1, 10.2, 10.3 and 10.10 from
and after the March 1999 Closing Date, the amount of Funded Debt
outstanding under the Fleet/Chase Debt Facility during the period
beginning on November 20, 1998 and ending on the March 1999 Closing
Date, shall not include an amount equal to the March 1999 Retired
Funded Debt Amount.
1.3. The definition of "REQUIRED SENIOR DEBT HOLDERS" contained in
Schedule B to the Note Purchase Agreements shall be and is hereby amended in its
entirety to read as follows:
"REQUIRED SENIOR DEBT HOLDERS" means as of the date of any
determination under this Agreement, (a) in the case of any notice
pursuant to Section 13(c) or (d), either (x) the holders of 35% in
aggregate principal amount of the March 1999 Senior Notes, the Senior
Notes and the Existing Senior Notes voting as a single class, or (y)
the Administrative Agent under the Fleet/Chase Debt Facility
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(including any successor to Fleet National Bank, as Administrative
Agent), and (b) in the case of any notice pursuant to Section 13(e) a
notice from the holders of the Requisite Senior Debt,
No notice shall be effective:
(i) pursuant to Section 13(c) unless, in the case of any
notice from the holders of the March 1999 Senior Notes, the Senior
Notes and the Existing Senior Notes, the aggregate unpaid principal
amount of such Senior Debt then outstanding shall be more than
$10,000,000 and in the case of any notice from the Administrative Agent
under the Fleet/Chase Debt Facility, the aggregate unpaid principal
amount of Senior Debt outstanding under the Fleet/Chase Debt Facility
shall be more than $10,000,000, PROVIDED that if neither group of
holders of Senior Debt shall hold an amount in excess of the required
minimum set forth in this clause (i), then the minimum outstanding
principal amount for each group shall be reduced to $5,000,000, and
(ii) pursuant to Section 13(d) unless, in the case of any
notice from the holders of the March 1999 Senior Notes, the Senior
Notes and the Existing Senior Notes, the aggregate unpaid principal
amount of such Senior Debt then outstanding shall be more than
$15,000,000 and in the case of any notice from the Administrative Agent
under the Fleet/Chase Debt Facility, the aggregate unpaid principal
amount of Senior Debt outstanding under the Fleet/Chase Debt Facility
shall be more than $15,000,000, PROVIDED that if neither group of
holders of Senior Debt shall hold an amount in excess of the required
minimum set forth in this clause (ii), then the minimum outstanding
principal amount for each group shall be reduced to $5,000,000.
1.4. The definition of "REQUISITE SENIOR DEBT" contained in Schedule B
to the Note Purchase Agreements shall be and is hereby amended in its entirety
to read as follows:
"REQUISITE SENIOR DEBT" shall mean (x) in the case of the
March 1999 Senior Notes, the Senior Notes and the Existing Senior
Notes, the holders of 51% in aggregate unpaid principal amount of such
Senior Debt voting as a single class, and (y) in the case of the
Fleet/Chase Debt Facility, the vote of the Administrative Agent and in
each case voting in accordance with the following:
(i) a vote from both classes of Senior Debt if, (x) the March
1999 Senior Notes, the Senior Notes and the Existing Senior Notes shall
be outstanding in the aggregate unpaid principal amount equal to or
more than $15,000,000, and the aggregate unpaid principal amount of
Senior Debt outstanding under the Fleet/Chase Debt Facility shall be
equal to or more than $15,000,000; or (y) the March 1999 Senior Notes,
the Senior Notes and the Existing Senior Notes shall be outstanding in
an aggregate unpaid principal amount less than $15,000;000 but
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more than $5,000,000 and the aggregate unpaid principal amount of
Senior Debt outstanding under the Fleet/Chase Debt Facility shall be
less than $15,000,000 but more than $5,000,000;
(ii) a vote from only the March 1999 Senior Notes, the Senior
Notes and the Existing Senior Notes if the March 1999 Senior Notes, the
Senior Notes and the Existing Senior Notes shall be outstanding in the
aggregate unpaid principal amount equal to or more than $15,000,000,
and the aggregate unpaid principal amount of Senior Debt outstanding
under the Fleet/Chase Debt Facility shall be less than $15,000,000;
(iii) a vote from only the Administrative Agent if the Senior
Debt outstanding under the Fleet/Chase Debt Facility shall be
outstanding in an aggregate unpaid principal amount equal to or more
than $15,000,000 and the aggregate unpaid principal amount of the March
1999 Senior Notes, the Senior Notes and the Existing Senior Notes shall
be less than $15,000,000;
(iv) a vote from only the March 1999 Senior Notes, the Senior
Notes and the Existing Senior Notes if the March 1999 Senior Notes, the
Senior Notes and the Existing Senior Notes shall be outstanding in the
aggregate unpaid principal amount less than $15,000,000 but equal to or
more than $5,000,000, and the aggregate unpaid principal amount of
Senior Debt outstanding under the Fleet/Chase Debt Facility shall be
less than $5,000,000;
(v) a vote from only the Administrative Agent if the Senior
Debt outstanding under the Fleet/Chase Debt Facility shall be
outstanding in the aggregate unpaid principal amount less than
$15,000,000 but equal to or more than $5,000,000, and the aggregate
unpaid principal amount of the March 1999 Senior Notes, the Senior
Notes and the Existing Senior Notes shall be less than $5,000,000; and
(vi) a vote of a majority in aggregate principal amount of
both classes of Senior Debt (voting as a single class) if the aggregate
unpaid principal amount of the March 1999 Senior Notes, the Senior
Notes and the Existing Senior Notes is less than $5,000,000 and the
unpaid principal amount of Senior Debt outstanding under the
Fleet/Chase Debt Facility is less than $5,000,000.
1.5. The definition of "SHARING AGREEMENT" contained in Schedule B to
the Note Purchase Agreements shall be and is hereby amended in its entirety to
read as follows:
"SHARING AGREEMENT"' means that certain Amended and Restated
Sharing Agreement, dated as of March 15, 1999, among the holders of the
Senior Notes, the Existing Senior Notes, the March 1999 Senior Notes
and the banks party to the Fleet/Chase Credit Facility, as amended,
supplemented or restated from time
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to time, including without limitation, amendments which add additional
parties thereto.
1.6. The definition of "SUBORDINATED FUNDED DEBT" contained in Schedule
B to the Note Purchase Agreements shall be and is hereby amended in its entirety
to read as follows:
"SUBORDINATED FUNDED DEBT" means the Notes, the March 1999
Subordinated Notes and any other unsecured Funded Debt that is
subordinated in right of payment or security to the Debt of the Company
substantially in the manner set forth in Section 13 or in such other
manner as shall be satisfactory to the Required Holders.
1.7. The following shall be added as new definitions in alphabetical
order to Schedule B to the Note Purchase Agreements:
"MARCH 1999 CLOSING DATE" means the date of the issuance and
sale of the March 1999 Notes.
"MARCH 1999 NOTE PURCHASE AGREEMENTS" means the March 1999
Senior Note Purchase Agreements and the March 1999 Subordinated Note
Purchase Agreements.
"MARCH 1999 Notes" means the March 1999 Senior Notes and the
March 1999 Subordinated Notes.
"MARCH 1999 RETIRED FUNDED DEBT AMOUNT" means the aggregate
principal amount of Funded Debt outstanding under the Fleet/Chase Debt
Facility which shall be repaid on the March 1999 Closing Date from the
proceeds of the issuance and sale of the March 1999 Notes.
"MARCH 1999 SENIOR NOTE PURCHASE AGREEMENTS" means the
separate Note Purchase Agreements dated as of March 15, 1999, among the
Company and the purchasers of the March 1999 Senior Notes, as amended,
supplemented or restated from time to time.
"MARCH 1999 SENIOR NOTES" means the Senior Notes issued under
the March 1999 Senior Note Purchase Agreements, as such notes may be
amended, supplemented or restated from time to time other than any
amendment that would increase the principal amount thereof above the
principal amount outstanding as of the date of any such amendment.
"MARCH 1999 SUBORDINATED NOTE PURCHASE AGREEMENTS" means the
separate Note Purchase Agreements dated as of March 15, 1999, among the
Company and
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the purchasers of the March 1999 Subordinated Notes, as amended,
supplemented or restated from time to time.
"MARCH 1999 SUBORDINATED NOTES" means the Subordinated Notes
issued under the March 1999 Subordinated Note Purchase Agreements, as
such notes may be amended, supplemented or restated from time to time
other than any amendment that would increase the principal amount
thereof above the principal amount outstanding as of the date of any
such amendment.
SECTION 2. MISCELLANEOUS.
2.1. This First Amendment shall be construed in connection with and as
part of each of the Note Purchase Agreements, and except as modified and
expressly amended by this First Amendment, all terms, conditions and covenants
contained in the Note Purchase Agreements are hereby ratified and shall be and
remain in full force and effect.
2.2. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this First Amendment
may refer to the Note Purchase Agreements without making specific reference to
this First Amendment but nevertheless all such references shall include this
First Amendment unless the context otherwise requires.
2.3. The descriptive headings of the various Sections or parts of this
First Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
2.4. This First Amendment shall be governed by and construed in
accordance with New York law.
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2.5. The execution hereof by you shall constitute a contract between us
for the uses and purposes hereinabove set forth, and this First Amendment may be
executed in any number of counterparts, each executed counterpart constituting
an original, but all together only one agreement.
NFO WORLDWIDE., INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
Title:
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Accepted and Agreed to:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇
Title: Director - Private Placements
NATIONAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
National Life Investment Management Co., Inc.
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Accepted and Agreed to:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
By CIGNA INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, on behalf of one or more separate
accounts
By CIGNA INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
LIFE INSURANCE COMPANY OF NORTH AMERICA
By CIGNA INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
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Accepted and Agreed to:
NORTHERN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer
RELIASTAR LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
