Exhibit 4.2.1
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
This Second Amendment to Note Purchase Agreement ("Amendment"),
dated as of August 31, 2001, by and between Xxxxxxx Denver Inc., a Delaware
corporation (the "Company") and Metropolitan Life Insurance Company
("Metropolitan Life").
WITNESSETH:
WHEREAS, the Company and Metropolitan Life are parties to that
certain Note Purchase Agreement dated as of September 26, 1996 (together
with all exhibits, schedules, attachments and dependencies thereto, the
"Agreement"); and
WHEREAS, pursuant to, and under the terms of the Agreement,
Metropolitan Life is the purchaser and the holder of all of the Notes (as
defined in the Agreement) issued by the Company; and
WHEREAS, the Company has requested that the Agreement be amended to
permit certain Subsidiaries to execute and deliver the guaranties required
by the Credit Agreement (as defined in the Agreement) (the "Subsidiary
Guaranties"), provided that Metropolitan Life receives like guaranties from
those Subsidiaries on terms no less favorable to Metropolitan Life than
those contained in the Subsidiary Guaranties given to the Lenders as
required by the Note Purchase Agreement; and
WHEREAS, Metropolitan Life is willing to so amend the Agreement as
requested by the Company pursuant to and upon the terms and conditions of
this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and
Metropolitan Life hereby agrees as follows:
1. The definition of "Credit Agreement" set forth in Schedule B of
the Note Purchase Agreement being "Defined Terms" is hereby amended as
follows:
"Credit Agreement" means (a) that certain Credit Agreement dated as
of January __, 1998, among the Company, the Lenders named therein, First
National Bank of Chicago, as Agent for said Lender and as LC Issuer as may
be amended, supplemented, restated or otherwise modified from time to time,
(b) that certain Credit Agreement dated as of August 31, 2001, among the
Company, the Lenders named therein, Bank One, N.A., as Agent for the Lenders
as the same may be amended, supplemented, restated or otherwise modified
from time to time, or (c) any other credit agreement (i) issued, entered
into or otherwise given in exchange for, or the proceeds of which are used
to extend, refinance, renew, replace, substitute, supplement or refund all
or any portion of the Company's indebtedness evidenced by the Credit
Agreement referred to in clause (a) and (b) above, or (ii) issued in
connection with the acquisition of any new subsidiary, as otherwise
permitted under the terms of this Agreement.
2. Except as expressly amended hereby, the Agreement and all other
documents executed in connection therewith shall remain unaltered and in
full force and effect. The Agreement, as amended hereby, and all rights and
powers created thereby or thereunder or under such other documents are in
all respects ratified and confirmed. From and after the date hereof, the
Agreement shall be deemed to be amended and modified as herein provided, but
except as so amended and modified, the Agreement shall continue in full
force and effect. The Agreement and this Amendment shall be read, taken and
construed as one and the same instrument. On and after the date hereof the
terms "Agreement" as used in the Agreement and all other references to the
Note Purchase Agreement in the Agreement and the documents executed in
connection therewith and/or herewith or any other instrument, document or
writing executed by the Company or any other person or furnished to
Metropolitan Life by
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the Company or any other person in connection herewith or therewith shall
mean the Note Purchase Agreement as amended hereby.
3. The Company represents and warrants to Metropolitan Life that
(i) this Amendment has been duly authorized, executed and delivered on its
behalf, and the Agreement, as amended and supplemented hereby constitute its
legal, valid and binding obligation enforceable against it in accordance
with its terms, except to the extent that a remedy or default may be
determined by a court of competent jurisdiction to constitute a penalty and
except to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws pertaining to
creditors rights or the general principles of equity, (ii) no default or
event of default has occurred and is continuing under the Agreement and
(iii) the representations and warranties set forth in Section 5 of the
Agreement are true and correct as of the date hereof.
4. This Amendment shall not be effective until Metropolitan Life
shall have received (a) duly executed and delivered Guaranties from the
Subsidiaries and (b) a copy of the executed Credit Agreement (being the
Credit Agreement dated as of August 31, 2001), including the Subsidiary
Guaranties, to the extent not already in the possession of Metropolitan
Life.
5. This Amendment may be signed in any number of counterparts, each
of which shall be deemed an original, including the signatures thereon, but
all of which together shall constitute one and the same instrument.
6. Except as otherwise specified herein, this Amendment embodies
the entire agreement and the understanding between the Company and
Metropolitan Life with respect to the subject matter hereof and supersedes
all prior Agreements, consents and understandings relating to any amendment
of the Agreement.
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IN WITNESS WHEREOF, the Company and Metropolitan Life have caused
this Amendment to be duly executed as of the date first herein above
written.
XXXXXXX DENVER INC.
By:
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METROPOLITAN LIFE INSURANCE COMPANY
By:
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