EXHIBIT 10.S
DRAFT: 7/31/98
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XXXXXXXXX COMPANY, INC.
$25,000,000
6.39% Senior Notes, Series 1998-B
due August 15, 2010
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FIRST SUPPLEMENT TO
NOTE PURCHASE AGREEMENT
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Dated as of August 1, 1998
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PPN:
FIRST SUPPLEMENT
TO
NOTE PURCHASE AGREEMENT
THIS FIRST SUPPLEMENT is entered into as of August 1, 1998 (this
"FIRST SUPPLEMENT") between Xxxxxxxxx Company, Inc., a Delaware corporation (the
"COMPANY"), and the Purchaser listed in the attached Schedule A (the
"PURCHASER").
R E C I T A L S
A. The Company has entered into a Note Purchase Agreement dated as
of July 15, 1998 with the institutions listed in Schedule A thereto (the "NOTE
PURCHASE AGREEMENT"); and
B. The Company desires to issue and sell, and the Purchaser desires
to purchase, an additional series of Notes (as defined in the Note Purchase
Agreement) pursuant to the Note Purchase Agreement and in accordance with the
terms set forth below;
NOW, THEREFORE, the Company and the Purchaser agree as follows:
1. Authorization of the New Series of Notes. The Company has
authorized the issue and sale of $25,000,000 aggregate principal amount of Notes
to be designated as its 6.39% Senior Notes, Series 1998-B, due August 15, 2010
(the "Series 1998-B Notes", such term to include any such Notes issued in
substitution therefor pursuant to Section 13 of the Note Purchase Agreement).
The Series 1998-B Notes shall be substantially in the form set out in Exhibit 1,
with such changes therefrom, if any, as may be approved by you and the Company.
2. Sale and Purchase of Series 1998-B Notes. Subject to the terms
and conditions of this Supplement and the Note Purchase Agreement, the Company
will issue and sell to the Purchaser, and the Purchaser will purchase from the
Company, at the Closing provided for in Section 3, Series 1998-B Notes in the
principal amount specified opposite its name in Schedule A at the purchase price
of 100% of the principal amount thereof.
3. Closing. The sale and purchase of the Series 1998-B Notes to be
purchased by the Purchaser shall occur at the offices of Xxxxxxx, Carton &
Xxxxxxx, Quaker Tower, Suite 0000, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 at 9:00 a.m., Chicago time, at a closing (the "CLOSING") on August 14,
1998 or on such other Business Day thereafter on or prior to August 31, 1998 as
may be agreed upon by the Company and the Purchaser. At the Closing the Company
will deliver to the Purchaser the Series 1998-B Notes to be purchased by it in
the form of a single Note (or such greater number of Series 1998-B Notes in
denominations of at least $500,000 as the Purchaser may request) dated the date
of the Closing and registered in its name
(or in the name of its nominee), against delivery by the Purchaser to the
Company or its order of immediately available funds in the amount of the
purchase price therefor by wire transfer of immediately available funds for the
account of the Company to account number 0000-0000-0000 at US Bank -
Minneapolis, US Bank Place, 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000, XXX
No. 0000-0000-0. If at the Closing the Company shall fail to tender such Series
1998-B Notes to the Purchaser as provided above in this Section 3, or any of the
conditions specified in Section 4 of the Note Purchase Agreement, as modified or
expanded by Section 4 hereof, shall not have been fulfilled to the Purchaser's
satisfaction, the Purchaser shall, at its election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights it may have
by reason of such failure or such nonfulfillment.
4. Conditions to Closing. The Purchaser's obligation to purchase and
pay for the Series 1998-B Notes to be sold to it at the Closing is subject to
the fulfillment to its satisfaction, prior to or at the Closing, of the
conditions set forth in Section 4 of the Note Purchase Agreement, as hereafter
modified, and to the following additional conditions:
(a) References in Section 4 of the Note Purchase Agreement to
"Series 1998-A Notes" shall be deemed to be references to the 1998-B
Notes and references to the "Closing" shall be deemed to refer to
the Closing as such term is defined in this First Supplement;
(b) Section 4.6 of the Note Purchase Agreement shall not apply
to the issuance and sale of the Series 1998-B Notes;
(c) The legal opinions, and forms thereof, called for by
Section 4.4 of the Note Purchase Agreement shall be appropriately
modified to reflect this First Supplement and the transactions
contemplated herein.
5. Representations and Warranties of the Company. The Company
represents and warrants to the Purchaser that:
(a) Each of the representations and warranties contained in
Section 5 of the Note Purchase Agreement is true and correct as of
the date hereof (i) except that all references to "Purchaser" and
"you" therein shall be deemed to refer to the Purchaser hereunder,
all references to "this Agreement" shall be deemed to refer to the
Note Purchase Agreement as supplemented by this Supplement, all
references to "Notes" therein shall be deemed to include the Series
1998-B Notes, and (ii) except for changes to such representations
and warranties or the Schedules referred to therein, which changes
are set forth in the attached Schedule 5.
(b) The Company has implemented measures to have all critical
business systems year 2000 ready by December 31, 1998, and the
advent of the year 2000 and its impact on such computer systems is
not expected to have a Material Adverse Effect.
6. Representations of the Purchaser. Each Purchaser confirms to the
Company that the representations set forth in Section 6 of the Note Purchase
Agreement are true and correct as to it, except that all references therein to
"you" therein shall be deemed to refer to the Purchaser hereunder, and all
references to "Series 1998-A Notes" therein shall be deemed to include the
Series 1998-B Notes.
7. Mandatory Prepayment of the Series 1998-B Notes. On August 15,
2006 and on each August 15 thereafter to and including August 15, 2009 the
Company will prepay $5,000,000 principal amount (or such lesser principal amount
as shall then be outstanding) of the Series 1998-B Notes at par and without
payment of the Make-Whole Amount or any premium.
8. Applicability of Note Purchase Agreement. Except as otherwise
expressly provided herein (and expressly permitted by the Note Purchase
Agreement), all of the provisions of the Note Purchase Agreement are
incorporated by reference herein and shall apply to the Series 1998-B Notes as
if expressly set forth in this Supplement and, accept as so provided or where
the context otherwise requires, references in the Note Purchase Agreement to
"Series 1998-A Notes" and to the "Notes" shall be deemed to refer to the Series
1998-B Notes and to include the Series 1998-B Notes.
IN WITNESS WHEREOF, the Company and the Purchaser have caused this
Supplement to be executed and delivered as of the date set forth above.
XXXXXXXXX COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxx
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Title: Senior Vice President and
Chief Financial Officer
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name:
Title: Director
Schedule A to
First Supplement
INFORMATION RELATING TO PURCHASER
Principal Amount of Series
Name and Address of Purchaser 1998-B Notes to be Purchased
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METROPOLITAN LIFE INSURANCE $25,000,000
COMPANY
(1) All payments by wire transfer of
immediately available funds to:
Metropolitan Life Insurance Company,
Corporate Investments
Account No. 002-2-410591
The Chase Manhattan Bank
Metropolitan Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ABA # 000000000
providing sufficient information, including PPN,
to identify the source and application of funds
and requesting the bank to send a credit advice
thereof to Metropolitan Life Insurance Company.
(2) All other communications:
Metropolitan Life Insurance Company
Fixed Income Investments
000 Xxxxxxx Xxxxxx, X.X. Box 633
Convent Station, NJ 07961-0633
Attention: Private Placement Unit
Telecopier Number: (000) 000-0000
Tax ID #00-0000000
Schedule 5
to Supplement
EXCEPTIONS TO REPRESENTATIONS
AND WARRANTIES
Exhibit 1 to
Supplement
[FORM OF SERIES 1998-B NOTE]
XXXXXXXXX COMPANY, INC.
6.39% Senior Note, Series 1998-B
due August 15, 2010
No. [_____] [Date]
$[_______] PPN[______________]
FOR VALUE RECEIVED, the undersigned, XXXXXXXXX COMPANY, INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, promises to pay to [__________], or registered assigns,
the principal sum of $[ ] on August 15, 2008, with interest (computed on the
basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance
thereof at the rate of 6.39% per annum from the date hereof, payable
semiannually, on August 15 and February 15 in each year, commencing with the
August 15 or February 15 next succeeding the date hereof, until the principal
hereof shall have become due and payable, and (b) to the extent permitted by law
on any overdue payment (including any overdue prepayment) of principal, any
overdue payment of interest and any overdue payment of any Make-Whole Amount (as
defined in the Note Purchase Agreement referred to below), payable semiannually
as aforesaid (or, at the option of the registered holder hereof, on demand), at
a rate per annum from time to time equal to the greater of (i) 8.39% or (ii) 2%
over the rate of interest publicly announced by Bank of America National Trust &
Savings Association from time to time in Chicago, Illinois as its "base" or
"prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America National Trust & Savings
Association in Chicago, Illinois or at such other place as the Company shall
have designated by written notice to the holder of this Note as provided in the
Note Purchase Agreement referred to below.
This Note is one of a series of Notes (herein called the "Notes")
issued pursuant to a Note Purchase Agreement, dated as of August 15, 1998, as
supplemented by a First Supplement dated as of August 1, 1998 (as so
supplemented and a hereafter from time to time amended and supplemented, the
"Note Purchase Agreement"), and is entitled to the benefits thereof. Each holder
of this Note will be deemed, by its acceptance hereof, (i) to have agreed to the
confidentiality provisions set forth in Section 20 of the Note Purchase
Agreement and (ii) to have made the representations set forth in Sections 6.1
(to the extent such representation is
required for such transfer) and 6.2 of the Note Purchase Agreement. The Notes
have not been registered under the Securities Act of 1933, as amended.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such xxxxxx's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
XXXXXXXXX COMPANY, INC.
By:
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Title:
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