FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
Exhibit 10.10
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS FIRST AMENDMENT, dated as of November 6, 2008 (this “Amendment”) to that certain Note
Purchase Agreement, dated as of October 23, 2008 (and as in effect immediately prior to the
effectiveness of this Amendment, the “Existing Note Purchase Agreement”), among The X. X. Xxxxxxx
Company, an Ohio corporation (the “Company”), and the purchasers signatory thereto (together with
their successors, transferees and assigns, collectively, the “Noteholders”) pursuant to which the
Company issued to the Noteholders its (i) 6.63% Senior Notes due November 1, 2018 in the aggregate
principal amount of $376,000,000 and (ii) 6.12% Senior Notes Due November 1, 2015 in the aggregate
principal amount of $24,000,000 (collectively, the “Notes”).
RECITALS:
A. The Noteholders are the holders of all of the outstanding Notes.
B. Capitalized terms used herein shall have the respective meanings ascribed thereto in the
Existing Note Purchase Agreement unless herein defined or the context shall otherwise require.
C. The Company and the Noteholders now desire to amend the Existing Note Purchase Agreement in
the respects, but only in the respects, hereinafter set forth.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Company and the Noteholders do hereby agree as follows:
1. AMENDMENTS.
1.1. Amendment to Section 10.5 (Priority Debt).
Section 10.5 of the Existing Note Purchase Agreement is hereby deleted in its entirety, and a
new Section 10.5 is hereby inserted in its place, to read as follows:
10.5 Priority Debt.
The Company will not, at any date, permit Priority Debt to exceed (a) prior to the last day of
the fiscal quarter in which the Folgers Acquisition Date occurs, 25% of Consolidated Total
Capitalization (determined as of the last day of the then most recently ended fiscal quarter of the
Company) and (b) thereafter, 15% of Consolidated Total Capitalization (determined as of the last
day of the then most recently ended fiscal quarter of the Company or determined as of such date if
such date shall be the last day of a fiscal quarter of the Company); provided, however, that (x) no
Lien created pursuant to Section 10.6(g) shall secure any Primary Senior Debt unless the Notes are
equally and ratably secured by all property subject to such Lien and (y) (i) no Subsidiary shall
guaranty or otherwise be or become obligated in respect of any Primary Senior Debt unless such
Subsidiary guaranties, or becomes similarly obligated in respect of, the Notes and (ii) such
Primary Senior Debt (excluding (A) the Xxxxxxx LLC Debt and (B) the Indebtedness under the Folgers
Bank Credit Agreement but including any refinancing, extension
or replacement of the Indebtedness evidenced by the Folgers Bank Credit Agreement) is subject
to the terms of the Intercreditor Agreement (or an intercreditor agreement in form and substance
reasonably satisfactory to the Required Holders), in each case all pursuant to documentation
reasonably satisfactory to the Required Holders; provided, further, however, that notwithstanding
anything contained in this Section 10.5 to the contrary, the Company shall be under no obligation
to (but may in its sole discretion) require any Foreign Subsidiary to guaranty the Debt under this
Agreement and the Notes to the extent such Foreign Subsidiary’s obligations under all Primary
Senior Debt consist solely of direct borrowings solely to such Foreign Subsidiary or a group of
Foreign Subsidiaries (a “Foreign Borrowing”) or guaranties of a Foreign Borrowing by another
Foreign Subsidiary.
1.2. Amendment to Schedule B.
Schedule B to the Existing Note Purchase Agreement is hereby amended by amending and restating
the definition of “Primary Senior Debt” to read as follows:
“Primary Senior Debt” means (a) the Bank Credit Agreement and (b) any other credit, loan or
borrowing facility or note purchase agreement by the Company or any Subsidiary providing, in each
case, for the incurrence of Senior Funded Debt in a principal amount equal to or greater than
$120,000,000, in each case under clauses (a) and (b) as amended, restated, supplemented or
otherwise modified and together with increases, refinancings and replacements thereof; provided
that for purposes of compliance with Section 9.7 only, “Primary Senior Debt” shall exclude the
Folgers Bank Credit Agreement and the Xxxxxxx LLC Debt (but it shall include any refinancings,
extensions or replacements of the Folgers Bank Credit Agreement and/or the Xxxxxxx LLC Debt).”
1.3. Amendment to Schedule B.
Schedule B to the Existing Note Purchase Agreement is hereby amended by inserting the
following new definition into such Schedule, in its proper alphabetical order, to read as follows:
“Xxxxxxx LLC Debt” means the $200,000,000 in principal amount of 6.60% Senior Notes issued by
Xxxxxxx LLC due November 13, 2009.”
2. NO OTHER MODIFICATIONS; CONFIRMATION.
All the provisions of the Notes, and, except as expressly amended, modified and supplemented
hereby, all the provisions of the Existing Note Purchase Agreement, are and shall remain in full
force and effect. As of the Effective Date (defined below), all references in the Notes to the
“Note Purchase Agreements” shall be references to the Existing Note Purchase Agreement, as modified
by this Amendment and as hereafter amended, modified or supplemented in accordance with its terms.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to execute and deliver this Amendment (which representations shall
survive such execution and delivery), the Company represents and warrants to the Noteholders that:
(a) all of the representations and warranties contained in Section 5 of the Existing
Note Purchase Agreement are correct with the same force and effect as if made by the Company
on the date hereof (or, if any representation or warranty is expressly stated to have been
made as of a specific date, as of such date);
(b) Xxxxxxx LLC is a limited liability company duly organized, validly existing and in
good standing under the laws of the state of Ohio;
(c) this Amendment and the Guaranty Agreement of Xxxxxxx LLC have been duly authorized,
executed and delivered by the Company and Xxxxxxx LLC, respectively, and this Amendment and
the Guaranty Agreement of Xxxxxxx LLC each constitute a legal, valid and binding obligation,
contract and agreement of the Company and Xxxxxxx LLC, respectively, enforceable against it
in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles relating to
or limiting creditors’ rights generally;
(d) the Existing Note Purchase Agreement, as amended by this Amendment, constitutes the
legal, valid and binding obligation, contract and agreement of the Company enforceable
against it in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles relating to
or limiting creditors’ rights generally;
(e) the execution, delivery and performance by each of the Company and Xxxxxxx LLC of
this Amendment, and the Guaranty Agreement of Xxxxxxx LLC, respectively, (i) have been duly
authorized by all requisite corporate or limited liability company, as applicable, action
and, if required, shareholder action, (ii) does not require the consent or approval of any
governmental or regulatory body or agency or registration, filing or declaration with, any
Governmental Authority, and (iii) will not (A) violate (1) any provision of law, statute,
rule or regulation or its certificate of incorporation, bylaws or operating agreement, (2)
any order of any court or any rule, regulation or order of any other agency or government
binding upon it, or (3) any provision of any material indenture, agreement or other
instrument to which it is a party or by which its properties or assets are or may be bound,
or (B) result in a breach of or constitute (alone or with due notice or lapse of time or
both) a default under any indenture, agreement or other instrument referred to in clause
(iii)(A)(3) of this paragraph (e);
(f) as of the date hereof, no Default or Event of Default has occurred which is
continuing;
(g) neither the Company nor any Subsidiary (i) is a Person described or designated in
the Specially Designated Nationals and Blocked Persons List of the Office
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of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (ii) engages
in any dealings or transactions with any such Person; and
(h) neither the Company nor any Subsidiary is in violation of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT ACT) Act of 2001 of the United States of America.
4. EFFECTIVENESS.
The amendments set forth in this Amendment shall become effective only upon the date of the
satisfaction in full of the following conditions precedent (which date shall be the “Effective
Date”).
4.1. Execution and Delivery of this Amendment.
The Company shall have delivered to each Noteholder a counterpart hereof, duly executed and
delivered by the Company, Xxxxxxx LLC and the Required Holders.
4.2. Representations and Warranties.
The representations and warranties of the Company made in Section 3 of this Amendment and of
Xxxxxxx LLC in the Guaranty Agreement shall remain true and correct in all respects as of the
Effective Date.
4.3. No Injunction, Etc.
No injunction, writ, restraining order or other order of any nature prohibiting, directly or
indirectly, the consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority.
4.4. Amendment to 1999 Note Purchase Agreements.
The Company shall have delivered to the Noteholders a fully executed copy of that certain
Fifth Amendment to Note Purchase Agreements, dated as of November 6, 2008, by and among the Company
and each of the Persons signatory thereto with respect to those certain separate Note Purchase
Agreements, each dated as of June 16, 1999, together with each of the other instruments and
agreements executed and/or delivered in connection therewith, each certified as true and correct by
a Responsible Officer.
4.5. Amendment to 2000 Note Purchase Agreements.
The Company shall have delivered to the Noteholders a fully executed copy of that certain
Fifth Amendment to Note Purchase Agreements, dated as of November 6, 2008, by and among the Company
and each of the Persons signatory thereto with respect to those certain separate Note Purchase
Agreements, each dated as of August 23, 2000, together with each of the
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other instruments and agreements executed and/or delivered in connection therewith, each
certified as true and correct by a Responsible Officer.
4.6. Amendment to 2004 Note Purchase Agreement.
The Company shall have delivered to the Noteholders a fully executed copy of that certain
Third Amendment to Note Purchase Agreement, dated as of November 6, 2008, by and among the Company
and each of the Persons signatory thereto with respect to that certain Note Purchase Agreement,
dated as of May 27, 2004, together with each of the other instruments and agreements executed
and/or delivered in connection therewith, each certified as true and correct by a Responsible
Officer.
4.7. Amendment to 2007 Note Purchase Agreement.
The Company shall have delivered to the Noteholders a fully executed copy of that certain
Second Amendment to Note Purchase Agreement, dated as of November 6, 2008, by and among the Company
and each of the Persons signatory thereto with respect to that certain Note Purchase Agreement,
dated as of May 31, 2007, together with each of the other instruments and agreements executed
and/or delivered in connection therewith, each certified as true and correct by a Responsible
Officer.
4.8. Guaranty of The Folgers Coffee Company.
The Folgers Coffee Company shall have executed and delivered to the Noteholders a guaranty
agreement in the form attached as Exhibit A hereto.
4.9. Payment of Special Counsel Fees.
The Company shall have paid on or before the Effective Date the reasonable fees, charges and
disbursements of Xxxxxxx XxXxxxxxx LLP, the Noteholders’ special counsel, to the extent reflected
in a statement of such counsel rendered to the Company at least one Business Day prior to the
Effective Date.
5. EXPENSES.
Whether or not this Amendment shall become effective, the Company will promptly (and in any
event within thirty (30) days of receiving any statement or invoice therefor) pay all fees,
expenses and costs relating to this Amendment, including, but not limited to, the reasonable fees
of the Noteholders’ special counsel, Xxxxxxx XxXxxxxxx LLP, incurred in connection with the
preparation, negotiations and delivery of this Amendment and any other documents related thereto.
In addition, the Company will pay all such fees, expenses and costs set forth in any subsequent
statement within 30 days of its receipt thereof. Nothing in this Section 5 shall limit the
Company’s obligations pursuant to Section 15.1 of the Existing Note Purchase Agreement.
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6. MISCELLANEOUS.
6.1. This Amendment constitutes a contract between the Company and the Noteholders for the
uses and purposes hereinabove set forth, and may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together only one agreement. Each
counterpart may consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto. Delivery of an executed signature page by facsimile
transmission shall be effective as delivery of a manually signed counterpart of this Amendment.
6.2. Whenever any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party, and all the promises and agreements contained in
this Amendment by or on behalf of the Company and the Noteholders shall bind and inure to the
benefit of the respective successors and assigns of such parties, whether so expressed or not.
6.3. This Amendment constitutes the final written expression of all of the terms hereof and is
a complete and exclusive statement of those terms.
6.4. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK 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.
[Remainder of page intentionally left blank. Next page is signature page.]
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If each Purchaser is in agreement with the foregoing, please sign the form of agreement on the
accompanying counterpart of this Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between the Purchasers and the Company.
| Very truly yours, | ||||||
| THE X. X. XXXXXXX COMPANY | ||||||
| By: Name: |
/s/ Xxxx X. Xxxxxx
|
|||||
| Title: | Vice President, CFO and Treasurer | |||||
| The foregoing is herby agreed to as of the date thereof. | ||||
| METROPOLITAN LIFE INSURANCE COMPANY | ||||
| NEW ENGLAND LIFE INSURANCE COMPANY | ||||
| by Metropolitan Life Insurance Company, its Investment Manager | ||||
| FIRST METLIFE INVESTORS INSURANCE COMPANY | ||||
| by Metropolitan Life Insurance Company, its Investment Manager | ||||
By: Name: |
/s/ Xxxxxx X. Xxxxxxx
|
|||
Title:
|
Managing Director | |||
| (executed by Metropolitan Life Insurance Company (i) as to itself as a Purchaser and (ii) as investment manager to First MetLife Investors Insurance Company as a Purchaser and New England Insurance Company as a Purchaser) | ||||
| THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY |
||||
By: Name: |
/s/ Xxxxx X. Xxxxx
|
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Its:
|
Authorized Representative | |||
| THE NORTHWESTERN
MUTUAL LIFE INSURANCE COMPANY FOR ITS GROUP ANNUITY SEPARATE ACCOUNT |
||||
By: Name: |
/s/ Xxxxx X. Xxxxx
|
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Its:
|
Authorized Representative | |||
| XXXXXXX NATIONAL LIFE INSURANCE COMPANY | ||||||
| By: | PPM America, Inc., as attorney in fact, | |||||
| on behalf of Xxxxxxx National Life Insurance Company | ||||||
| By: Name: |
/s/ Xxxx Xxxxxxxxx
|
|||||
| Title: | Sr. Managing Director | |||||
| HARTFORD LIFE INSURANCE COMPANY | ||||||
| HARTFORD INSURANCE COMPANY OF ILLINOIS | ||||||
| HARTFORD CASUALTY INSURANCE COMPANY | ||||||
| HARTFORD LIFE AND ANNUITY INSURANCE COMPANY | ||||||
| By: | Hartford Investment Management Company | |||||
| Their Agent and Attorney-in-Fact | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxx
|
|||||
| Title: | Senior Vice President | |||||
| STATE FARM LIFE INSURANCE COMPANY | ||||
By: Name: |
/s/ Xxxxx Xxxxx
|
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Title:
|
Senior Investment Officer | |||
By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||
Title:
|
Investment Officer | |||
| STATE FARM LIFE AND ACCIDENT ASSURANCE COMPANY | ||||
By: Name: |
/s/ Xxxxx Xxxxx
|
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Title:
|
Senior Investment Officer | |||
By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||
Title:
|
Investment Officer | |||
| UNUM LIFE INSURANCE COMPANY OF AMERICA | ||||||
| By: | Provident Investment Management, LLC | |||||
| Its: | Agent | |||||
| By: Name: |
/s/ Xxx Xxxxx
|
|||||
| Title: | Vice President | |||||
| COLONIAL LIFE & ACCIDENT INSURANCE COMPANY | ||||||
| By: | Provident Investment Management, LLC | |||||
| Its: | Agent | |||||
| By: Name: |
/s/ Xxx Xxxxx
|
|||||
| Title: | Vice President | |||||
| ING LIFE INSURANCE AND ANNUITY COMPANY | ||||||
| ING USA ANNUITY AND LIFE INSURANCE COMPANY | ||||||
| RELIASTAR LIFE INSURANCE COMPANY | ||||||
| SECURITY LIFE OF DENVER INSURANCE COMPANY | ||||||
| By: | ING Investment Management LLC, as Agent | |||||
| By: Name: |
/s/ Xxxxxxxxxxx X. Xxxxx
|
|||||
| Title: | Senior Vice President | |||||
| CINCINNATI LIFE INSURANCE COMPANY | ||||||
| By: | Advantus Capital Management, Inc. | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Vice President | |||||
| THE MUTUAL SAVINGS LIFE INSURANCE COMPANY | ||||||
| By: | Advantus Capital Management, Inc. | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Vice President | |||||
| THE RELIABLE LIFE INSURANCE COMPANY | ||||||
| By: | Advantus Capital Management, Inc. | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Vice President | |||||
| FARM BUREAU LIFE INSURANCE COMPANY OF MICHIGAN | ||||||
| By: | Advantus Capital Management, Inc. | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Vice President | |||||
| GREAT WESTERN INSURANCE COMPANY | ||||||
| By: | Advantus Capital Management, Inc. | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Vice President | |||||
| THE CATHOLIC AID ASSOCIATION | ||||||
| By: | Advantus Capital Management, Inc. | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Vice President | |||||
| AMERICAN REPUBLIC INSURANCE COMPANY | ||||||
| By: | Advantus Capital Management, Inc. | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Vice President | |||||
| UNION NATIONAL LIFE INSURANCE COMPANY | ||||||
| By: | Advantus Capital Management, Inc. | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Vice President | |||||
| UNITED INSURANCE COMPANY OF AMERICA | ||||||
| By: | Advantus Capital Management, Inc. | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Vice President | |||||
| SECURITY NATIONAL LIFE INSURANCE COMPANY | ||||||
| By: | Advantus Capital Management, Inc. | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxxxx
|
|||||
| Title: | Vice President | |||||
| AXA EQUITABLE LIFE INSURANCE COMPANY | ||||
By: Name: |
/s/ Xxx Xxxx
|
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Title:
|
Investment Officer | |||
| ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA | ||||||
| By: | Allianz of America, Inc. as the authorized signatory and investment manager |
|||||
| By: Name: |
/s/ Xxxx Xxxxx
|
|||||
| Title: | Assistant Treasurer | |||||
| THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA | ||||
By: Name: |
/s/ Xxxxx Xxxxxxxxxxx
|
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Title:
|
Senior Director, Private Placements | |||
| THE TRAVELERS INDEMNITY COMPANY | ||||
By: Name: |
/s/ Xxxxx X. Xxxxxxx
|
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Title:
|
SVP, Director Fixed Income Investments | |||
| MODERN WOODMEN OF AMERICA | ||||
By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||
Title:
|
Portfolio Manager — Private Placements | |||
| THE UNION CENTRAL LIFE INSURANCE COMPANY | ||||||
| By: | Summit Investment Advisors, Inc., as Agent | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxx
|
|||||
| Title: | Managing Director — Private Placements | |||||
| AMERITAS LIFE INSURANCE CORP. | ||||||
| By: | Summit Investment Advisors, Inc., as Agent | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxx
|
|||||
| Title: | Managing Director — Private Placements | |||||
| ACACIA LIFE INSURANCE COMPANY | ||||||
| By: | Summit Investment Advisors, Inc., as Agent | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxx
|
|||||
| Title: | Managing Director — Private Placements | |||||
| LIFE INSURANCE COMPANY OF THE SOUTHWEST | ||||
By: Name: |
/s/ R. Xxxxx Xxxxxxx
|
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Title:
|
Senior Vice President, Sentinel Asset Management | |||
| STANDARD INSURANCE COMPANY | ||||
By: Name: |
/s/ Xxxxx Xxxxxxxxxx
|
|||
Title:
|
Vice President & Managing Director | |||
| COUNTRY LIFE INSURANCE COMPANY | ||||
By: Name: |
/s/ Xxxx Xxxxxx
|
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Title:
|
Director — Fixed Income | |||
| COUNTRY MUTUAL INSURANCE COMPANY | ||||
By: Name: |
/s/ Xxxx Xxxxxx
|
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Title:
|
Director — Fixed Income | |||
| COTTON STATES LIFE INSURANCE | ||||
By: Name: |
/s/ Xxxx Xxxxxx
|
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Title:
|
Director — Fixed Income | |||
| NATIONAL GUARDIAN LIFE INSURANCE COMPANY | ||||
By: Name: |
/s/ X.X. Xxxxx
|
|||
Title:
|
Senior Vice President & Treasurer | |||
GUARANTOR ACKNOWLEDGEMENT
The undersigned hereby acknowledges and agrees to the terms of the First Amendment to Note
Purchase Agreement, dated as of November 6, 2008 (the “First Amendment”), amending that certain
Note Purchase Agreement, dated as of October 23, 2008 (the “Note Purchase Agreement”), among The
X.X. Xxxxxxx Company, an Ohio corporation, and the holders of Notes party thereto. The undersigned
hereby confirms that the Guaranty Agreement to which the undersigned is a party remains in full
force and effect after giving effect to the First Amendment and continues to be the valid and
binding obligation of the undersigned, enforceable against the undersigned in accordance with its
terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditor’s rights generally or by equitable principles.
Capitalized terms used herein but not defined are used as defined in the Note Purchase
Agreement.
Dated as of November 6, 2008
| X.X. XXXXXXX LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Exhibit A
Form of The Folgers Coffee Company Guaranty Agreement
Form of The Folgers Coffee Company Guaranty Agreement
[omitted]
